n 2c- (Snrttrll ffiam Srljnnl ffiibrart) i^.T n«^ Cornell University Library KF 801.A73 1888 V.1 Addison on contracts ibeing a treatise o 3 1924 018 828 594 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018828594 ADDISON ON CONTRACTS: BEINQ A TREATISE ON THE LAW OF CONTRACTS. By C. G; ADDISON, Esq., AUTHOE OP THE "LAW OF TOET8." EIGHTH EDITION. By HORACE SMITH, OF THE ISKEB TEMPLE, E8QUIBB, BABBISTEB-AT-LAW, BECOBDEB OB LENCOLIT. Wiii\i amertcan Wotes Bt benjamin VAUGHAN ABBOTT. )3rous!)t fiobm to Bate By HORACE G. WOOD. Vol. I. BOSTON: CHARLES H. EDSON & CO., PUBLISHERS. 1888. 'B/a^o r?/ Copyright, 1883, Bt Soule and Bdgbee. Copyright, 1888, By Chables H. Edson akd Co. Univeesitt PnEss ; John Wiuon and Son, Cambridge. PREFACE TO SECOND AMERICAN EDITION. The excellence of the work of Mr. Addison as a legal writer is too well established to need one word of commendation from me. His treatise upon the " Law of Torts " is standard authority in all of our courts, and is more often cited than any other book upon the .subject. This work was prepared by him with the same care as that bestowed upon " Torts," and it has always been regarded hy myself as the most thorough, exhaustive, and practical work upon the subject known to the profession. I have used it almost entirely dur- ing my practice, and have always found it accurate, reliable, and practical. There is but little difference in the law relating to contracts as administered in the courts of England and this country, and this work will be found as useful to American as to English lawyers. My attention has been directed mainly to those branches of the topics that are of the most practical value to the profession. If ample time had been given me in discharging the duty of editor, I could have satisfied myself and my professional brethren much better than I have. But I have done the best ^y PREFACE TO SECOND AMERICAN EDITION. I could, in view of the demands made upon my time by professional engagements. Irrespective of the notes, I can recommend the book to the profession as one of great merit. My notes are appended to the book, and will be found in the last volume. They are designated by numerals, and in all cases where there is no note cor- responding with a numeral indicating a reference the numeral may be understood as referring to the Appendix. The notes are numbered consecutively from 1 to 100, or to whatever point the number of notes may be carried, so that no confusion can arise. H. G. WOOD. New York, Dec. 15, 1887. PREFACE TO THE AMEEICAN EDITIOK That Addison on" Contracts is a work of high value and reputation appears from the nature of its subject-matter and the fiicts that it has reached an eighth edition in England and that three editions have heretofore been published in this country. It has re- ceived warm encomiums both from active practitioners and critics in both countries. The slightest comparison of the eighth English edition with the seventh shows that the first-men- tioned contains large additions ; they are estimated at nearly 40 per cent. The explanations given by Mr. Horace Smith, the English editor, in his Preface to the eighth edition, show that he has added nearly two thousand cases, and that the work in its new form, exclusive of Indices, &c., is lengthened about two hundred pages, notwithstanding much condensa- tion of former matter. He thus describes some of his additions, — " The present edition has been considerably altered and en- larged. The first chapter, which deals with the nature and decisions of contracts in general, has been in some measure re- cast, with a view to greater clearness and perspicuity. The VI ' PREFACE. chapter on the ' Contract of Letting ' (in which is contained the law of Landlord and Tenant) has been made more com- plete by the introduction of the subjects of ' waste,' ' rights to fixtures,' and ' duties of innkeepers,' and by the addition of a whole section on the law of ' Distress for Rent.' Some statement of the law relating to negligence in the performance of contracts for Work and Services, and other contracts, has been added to the present edition. The effect of fraud, deceit, or misrepresentation upon contracts, the law with respect to mandamus to public companies and local boards, questions of Specific Performance and Injunctions, tJie right of lien of bailors, bailees, and others, have received fuller consideration. The section upon ' Carriers ' has been very considerably en- larged, by dealing more exhaustively than in^previous editions with the duties of carriers in the carrying of passengers or goods, and in the forwarding and delivering of the latter." The American Notes have been framed vs'ith study and labor, and with a care in the selection of topics which may need to be explained. Addison on Con- tracts is a work of immense scope, embracing not only principles applicable to contracts generally, such as a practitioner would naturally expect to find in a work entitled "on Contracts," but also a concise, de- tailed statement of the law of all the important partic- ular contracts, of Landlord and Tenant, Bailments, Master and Servant, Agency, Carriers, especially by vessel or railroad. Mortgages, both of real and personal property, Suretyship, Insurance, marine, fire, and life. Bills, Notes, and Cheques, Partnership, Joint-Stock Companies, Marriage, Sales of real or personal prop- erty, and several others. Upon these various subjects there is an immense accumulation of American deci- sions, any complete exposition of which, in notes, would fill four or five volumes additional to x\ddison's PREFACE. Vll text. Moreover, there are in this country distinct text- books on these topics which are widely in use. Few lawyers would turn to the foot-notes of an English treatise on Contracts for details of the American law on the svibjects mentioned. The plan pursued has therefore been to give reasonably full annotation under those parts of the work which treat of the law of con- tracts generally, but beneath those which treat of the particular contracts, to refer the reader to recent sources of full information, — to the chief text-books, titles in the Digests, and essays in the law magazines on the subjects -discussed in the text, adding a mention of such decisions as have appeared since the general date of the writings cited. Yet special attention has been given to topics on which the law of this country is different from that of England, or on which there have been recent changes or developments here. On such matters an American reader who should follow Addison's text only, might be misled, or at least would lack recent and important information ; for this reason they have been thought to need full notes. Examples of notes of this character are : those upon * p. 56, on contracting by telegraph ; * p. 67, on formalities of con- tracting with the United States Government ; * p. 87, on liberty of Amei-ican corporations to contract without seal ; * p. 105, on contract-powers of national banks ; * p. 194, on the construction, by courts of one State, of contracts made in another; * pp. 419, 519, on trans- portation of explosives ; * pp. 519, 520, on obligations, rights, and liabilities relative to special railroad cars, such as drawing-room and sleeping cars, ladies' cars, smoking cars, cattle cars, &c. ; * p. 541, on the right VIU PREFACE. of common carriers to limit their common law liability by special contract or notice ; * p. 805, on the parallel between English joint-stock companies and American business corporations ; * p. 989, on conditional sales ; and there are many others. Upon the whole, the judi- cious reader will easily perceive that more extended annotation could not have been made without either omitting some of the English chapters, or enlarging the woi'k to three volumes. It is proper to add that the labor and responsibility of the undersigned have been limited to the prepara- tion of the American Notes and the American Table of Cases. The English portions of the work are simply a faithful reprint of the original. BENJ. VAUGHAN ABBOTT. New Tobk, Jan. 1883. PUBLISHERS' NOTE. In order to facilitate verification of English references, the Eng- lish paging is given at the top of the pages in this edition, and the points of division are indicated by stars in the test. The paging adopted for the American edition will be found at the bottom of the pages. The references in both Tables of Cases, and in the Index, are to this new or bottom paging. CONTENTS TO VOLUMES I, II., III. THE REFEBENCES ARE TO THE BOTTOM PAGING. BOOK L FORMATION AND INTERPRETATION OF CONTRACTS IN GENERAL. CHAPTEE I. THE FORMATION OF CONTRACTS. PAGE Sect. 1. — Or the Several Kinds or Contracts. Division OF Contracts 1 2. — Of the Parties to Contracts 55 3. — Of the Authentication of Contracts . . . 246 CHAPTEE II. THE INTERPRETATION OF CONTRACTS. Sect. 1. — General Principles of Interpretation. . . 285 2. — Of the Admissibility of Oral Evidence in Written Contracts 320 CONTENTS. BOOK II. THE LAW OF PARTICULAR CONTRACTS. • CHAPTER I. THE CONTRACT OE LETTING. PAGE Sect. 1. — Landlokd and Tenant 339 2. — Distress for Rent .... 464 3. — The Letting of Chattels . 509 CHAPTEE II. contracts eor services. Sect. 1.— Work and Labor 524 2. — Master and Servant. 629 3. — Principal and Agent 660 4. — Contracts for Carriage 691 CHAPTER III. CONTRACTS OF SECURITY. Sect. 1. — General Principles ... .... 1 2. — Mortgage, etc., of Realty 4 3. — Mortgage, etc., OP Chattels .... 50 4. — Mortgage, etc., op Incorporeals ... 76 CHAPTER IV. contracts of indemnity. Sect. 1. — Principal and Surety 79 2. — Marine Insurance 113 3. — Fire Insurance 185 4. — Life Insurance . . ... .... 198 CONTENTS. xi CHAPTER V. MERCANTILK INSTRUMENTS. PAGB Sect. 1. — Bills, Notes, and Cheques 214 CHAPTER VI. CONTRACTS OF ASSOCIATION. Sect. 1. — Partnership 267 2. — Joint-Stock Companies 283 3. — Marriage 321 CHAPTER VII. the contract of sale. Sect. 1 . — Of Contracts for the Sale of Lands . . . 863 2. — Of Contracts for the Sale of Goods and Chattels 428 3. — Of Contracts for the Sale of Incorporeal Property 550 BOOK III. IMPLIED CONTRACTS. CHAPTER I. General Principles . 575 Sect. 1. — Implied Promises in Respect of Monet paid for Another . 586 2. — Implied Promises in Respect of Money re- ceived FOR the Use op Another . . . 592 3. — Implied Probhses in Respect op Accounts stated . 604 CONTENTS. BOOK IV. STAMPS ON CONTEACTS. CHAPTER I. PAGE General Principles 610 CHAPTEE II. The Stamps appropriate to Particular Contracts . . 622 BOOK y. THE BREACH, AVOIDANCE, DISCHARGE, AND TRANSFER OF CONTRACTS. CHAPTEE I. OF REMEDIES FOR BREACH OF CONTRACT. Sect. 1. — Damages . . . 669 2. — Specific Performance. . . .... 696 CHAPTEE II. THE avoidance OF CONTRACTS. Sect. 1. — Void Contracts 714 2, — Voidable Contracts 768 CONTENTS. ' xiii CHAPTER III. THE DISCHARGE OF CONTRACTS. PACE Sect. 1. — The Performance of Contracts 787 2. — Discharge by Consent of the Parties . . . 827 3. — Discharge by Operation of Law 853 CHAPTER IV. the transfer of contracts. Sect. 1. — Transfer by Assignment 893 Sub-sect. 1 . — Of Covenants running with the Land . 899 Sect. 2. — Transfer by Death 916 3. — Transfer by Marriage 940 4. — Transfer by Bankruptcy 946 Index 959 Index of English Cases xiii Index op American Cases xcvii APPENDIX 1 INDEX OF ENGLISH CASES. THE EEFERENCES AKE TO THE BOTTOM PAGING. PAGE Aaltjee Willemina, The . i. 102 Aaronsin, Ex parte ... ii. 866 Abbot V. Blofield i. 209 Abbott V. Douglas . . . . ii. 226 V. Parfitt ... . i. 204 Abbotts V. Barry ii. 584 Aberaman Iron Works v. Wick- ens ii. 390, 302 Aberdeen RaiL Co. u. Blaikie i. 569, ii. 311 Abraliam v. Reynolds . . . i. 645 Abrahams v. Lord Mayor, &e., of London ii. 290 Abrey v. Crux i. 324 Absolom 0. Gething . . . . ii. 795 Absolon V. Marks ii. 245 Acatos V. Burns . i. 708, 721 ; ii. 73 Accidental Death Assurance Co., In re ii. 821 Acebal v. Levey ... . ii. 4.30 Acey V. Fernie ii. 206 Ackland v. Lutley .... i. 310 Ackroyd v. Smith ii. 901 Acoeks V. Pliillips ... i. 431 A'Court V. Cross .... ii. 883 Acranian v. Morris . . ii. 438, 458 Adams v. Angel .... ii. 19 V. Buckland . ii. 935 V. Claxton ... . . ii. 32 V. Clera f. 455 V. Crane . . . . 1. 479 V. Dansay i. 267 u. Haggar . . . . i. 343 V. Jarvis ii. 585 V. Lindsell i. 45 V. Lond. & York Rail. i. 753, 759 V. Mackenzie .... ii. 163 V. Midland Rail. Co. . . ii. 672 V. Richards .... ii. 466 V. Royal Mail, &o. . . . i. 699 a. Wordley i. 324 Adamson v. Jarvis i. 688 ; ii. 502, 515 Adderley v. Dixon . . . ii. 699 Addinell's Case i. 41 PAOE Addison v. Cox ii. 846 V. Gibson i. 79 V. Preston, Mayor of . . i. 182 V. Walker ii. 21 Adlard v. Booth i. 585 Adnam v. Earl of Sandwich ii. 871 Adsetts V. Hives ii. 857 Afrika, The i. 568 Agacio V. Forbes .... i. 60, 86 Agar V. Athenasum Life Assurance Co. . . .' i. 161, 522 V, Macklew .... ii. 414 Agg V. Nicholson ... ii. 258, 263 Agra Bank v. Berry .... ii. 34 V. Hoffman i. 543 Agra and Masterman's Bank,/n re ii. 896 Ex parte Anderson i. 164 ; ii. 24, 264 Agricult. Catt. Ins. Co. gerald .... Agullar V. Rodgers Ahem v. Bellman . Aiken v. Short . . Aitchison v. Lohre Akerbloom «. Price Akerman v. Humphery . Albert Ass. Co., In re Albingerw. Armstrong Albion Fire, &c., v. Mills Albion Life Assurance Albrecht v. Sussman . Alchin V. Hopkins . . Alciator v. Smitli . Alcinbrook v. Hall Alder v. Boyle . . . Alderman v. Neate Alderson v. Langdale V. Maddison . . Pope . Fitz- . ii. 855 . ii. 183 . i, 416 . ii. 595 ii. 171, 177 . i. 667 . Ii. 495 . ii. 206 . i. 822 . . i. 319 Soc, In ii. 210, 268 . . i. 237 ii. 737 . i. 238 . . ii. 748 i. 677 . . i. 187 . . ii. 253 1. 256 ; ii. 371 i. 141 Aldham v. Brown ii. 316 Aldous i>. Cornwall ii. 2-52, 253, 855 Aldridge v. Gt. West. Rail. Co. i. 786, 795, 796 V. Johnson .... . ii. 454 XIV INDEX OF ENGLISH CASES. Aleberry v. Walby Alexander, Ex parte 0. Barker , I). Dowie V. Gardner . V. Gibson . V. McKenzie V. Owen u. Sizer . V. Tlioinas . V, Vane . . r. Worman Alford V. Vickery Aline, The . Alison, In re, Allan V. Gripper . V. Kenning V. Lake . . . V. Sundius . . Allanson v. Atkinson AUard, Ex parte, V. Bourne . . AUason v. Stark AUcock V. Moorliouse AUday . . ii. 460 . i. 332 ii. 596 . . ii. 867 . . i. 162 . . i. 187 . . ii. 12 Gt. West. Rail. Co. i. 785, 786, 787 Allen, Ex parte . . . . ii, 956 V. Allen i. 195 . . . ii. 942 . . . ii. 42 . 1. 129 . . i. 103 . . ii. 797 i. 96 . i. 174 . . . ii. 765 . ii. 258, 263 . . ii. 215 . . ii. 586 71, 182, 192, 565 i. 414, 423, 465 . ii. 73 ii. 9, 17, 21, 870 . . ii. 492 V. Bennett . . V. Bryan o. Cameron V. Clark V. Dundas . . V. Edmundson i;. Flicker . . v. Harrison V. Hay ward V. Hopkins 276 ii. 430 ii 915 ii. 481 . i. 593 . ii. 819 ii. 236, 2G9 . i. 497 . ii. 073 . i. 244 ii. 500 V. Kemble i. 317 V. Knight ii. 34, 39 (/. Milner ii. 859 V. Minor i. 194 V, Morrison . . . ii. 616 V. Pink i. 325 V. Rescous ii. 717 V. Richardson ii. 390 V. Sea Fire, &c., Ins. Co. . ii. 264 V. Seckham . . . . ii. 709 V. Smith . . . . i. 463 V. Sugrue . ... ii. 162 V. Waldgrave . i. 74, 128, 181 Alley V. Deschamps . . . . ii. 413 Alliance Bank v. Broom . . i. 27 V. Kearsly .... i. 138, 522 Alliance Bank of Simla v. Carey ii. 873 Allison V. Bristol Mar. Ins. Co. i. 718, 719; ii. 154, 166 AUkina v. Jupe .... ii. 118, 119 AUnut V. Ashenden .... ii. 84 AUsop V. Wheatcroft . . . ii. 737 Alner v. George ii. 894 Alsager v. Close . . . . ii. 264 Alsager v. Spalding . ii. 601, 726, 731 V. St. Cath. Dock Co. . i. 728 Alston V. Hering i- 782 Alt V. Alt . . . . . ii. 330 Alton V. Mid. Kail. Co. i. 62, 692, 742 Alvarez de la Rosa v. Prieto . ii. 757 Amalia, The i. 714 Ambrose Lake Tin Co., In re ■ ii. 288 V. Kerrison . . . ii. 359 Amery v. Rogers . . . ii. 181 American Merchants, Company of V. British and Foreign Marine Insur. Co. Ames V. Hill i Amicable Society v. BoUand I. 653, ii. 713, 1.57 654 204 811 . i. 648 i. 96 ii. 887, 889 i. 116, 725 . ii. 875 ii. 319 ii. 222 ii. 24 ii. 539 ii. 455 ii. 199 202, 207 i. 70 , ii. 817 ii. 938 464, 467 ,84: 118 358 128 723 Amies v. Stevens Amor V. Fearon Amory v. Delamiri Amos r. Smith . V. Tcniperley Amott r. Holden Amsink, Ex parte Ancona v. Marks Anderson, Ex parte V. Buckton . !'. Clark V. Edie I. Fitzgerald V. Hnyman V. Hillies V. Martindale . V. Mid. Rail. Co. . i f. Morice !■, Oppenheimer v. Pitcher ... i. 333; ii. V. Ratclifle . . V. Thornton V. WaUis Anderson's Case Anders Knape, The Andrew Ognell's Case Andrew, In re V. Boughey f. Hancock r. Moorliouse . Andrew's Case . . Andrews v. Belfield i. Dally . . . V. Ellison . . V. Garstin r. Haiies . . V. Mellish . i: Paradise u. Pugh . V Smith . . . i, Angell V. Duke . i. 255, Angus, Ex parte ii, V. Dalton, 6 Ap. Cas. . . ii. 879 Ankerstein v. Clarke . i, 209 ; ii. 932 Annandale v. Harris . . . . ii. 718 V. Pattison . . ii. 614 Annesley v. Muggridge . . . ii. 407 11. »B . ii. 168 ii. 288, 298 . i. 567 . ii. 357 . i. 685 . ii. 847 . i. 370 . i. 718 . ii. 305 576 ; ii. 455 i. 71, 182 i. 171 ii. 272 1.441 ii. 159 i. 358 ii. 268 i. 269 325 305 INDEX OF ENGLISH CASKS. Ansell V. Baker ii. 857 Anspach, Margravine of v. Noel ii. 386 Anstey v. Harden ii. 84(i Antoine v. Morstiead . . . i. 237 Antra m v. Chaoe ... i. 68, 308 An worth v. Johnson .... i. 384 Appleby v. Johnston i. 38 V. Myers . . . i. 583, 586 ; ii. 802 Applegarth v. CoUey .... i. 633 Appleton V. Binks .... i. 127 Appleyard, Ex parte . . ii. 299, 776 Arbouin v. Anderson . . . . ii. 266 Aroangelo !'. Tliompson . . ii. 142 Archbold v. Scully . . ii. 868, 869 Archer v. Bank of England . . i. 86 0. Baynes ii. 431 u. James ii. 762 V. Marsh ... . . ii. 7*) 0. Snatt ii. 32 Ar^en v. PuUen i. 367 w. SulUvan i. 284, 363, 426; ii. 906 V. Tucker . . . . i. 129 Arding v. Lomax i. 648 Ards V. Watkins . . . . ii. 915 Argentina, The ii. 495 ArgoU t: Cheney ii. 856 Arlington v. Meyricke . . ii. 87, 88 Armistead v. White . . . i. 457, 460 V. Wilde i. 457 Armory v. Delamirie . . . i. 625 Armstrong v. Lewis .... ii. 63 V. Percy ii. 503 V. Stokes . . . . i. 88; ii. 818 V. Turquand ii. 207 Armaworth v. S. East. Rail. Co. i. 825 Arnison, Ex parte . . . . i. 485, 497 Arnold, In re ii. 390 V. IBlencowe ii. 934 V. Garner .... . i. 677 V. Mayor of Poole . i. 154; ii. 822 V. Revoult i. 209 v. The Cheque Bank . i. 548 Arris v. Stukeley ii. 596 Arrowsmith, Ex parte . . ii. 737 Arthur v. Barton . . . i. 103 V. Dale i. 132 Arundell v. Phipps . ii. 335, 481 V. Trevillian ii. 322 Ashbury, Ex parte . i. 396 ; ii. 290 Ashbury Carriage Co. v. Hiche i. 160 Ashbury Rail. Co. v. Riche . ii. 286 Ashby V. Ashby ii. 604 V. Child ii. 936 V. James ii. 887 V. White ii. 670 Ashcroft I). Bourne .... i. 432 V. Crow Orchard Coll. Co. i. 700, 728 Ashdown v. Ingomells . . . ii 946 Ashendon v. Lond., Brighton, & South Coast Rail i. 786 Ashersmith v. Drury . . . . ii. 760 Ashfield V. Ashfleld .... i. 195 Ashley's Case .... ii. 297, 774 Ashley v. Ashley ii. 207 V. Pratt ii. 160 Ashmole v. Wainwright . . ii 696 Ashpitel v. Bryan . . .i, .337; ii. 228 V. Sercomb .... . ii. 316 Ashton /I. Dalton . . . ii. 41 Asliworth V. Mounsey . . ii. 404 V. Outran! . ... i, 212 V. Stanwix . i. 038, 010, 041, 645 Asiatic Banking Co. . . ii. 896 Aspden v. Austin . . i. 301 ; ii. 579 Aspinall v. Wake i. 204 Assop V. Yates . . . i. 639 Astey !;. Emery . . . . ii. 441 Astle V. Wriglit ii. 786 Astley'u. Johnston . . . . ii. 228 (I. Reynolds V. Weldon Aston V. Gwinnell V. Heaven . Athenaeum Insurance Soc, Atherstone v. Bostock Atkin I'. Acton . , V. Barwick . . Atkins !■. Banwell . V. Curwood V. Farr . V. Owen . . . Atkinson v. Bell V. Cotesworth . u. Denby ii. 590, V. Hawdon . . V. Macreth . . V. Settree V. Smith . . V. Stephens u. Woodall . . Atkyns v. Amber . V. Kinnier . V. Pearce V. Uton . . . 598, . ii. 596 ii. 688, 691 . . ii. 729 . i. 739, 740 , In re ii. 300 . . i. 450 . . i. 648 . . . i. 63 . . i. 186 . . i. 215 . . ii. 322 . . ii. 265 ii. 449, 450 i. 72-5 601, 731, 767 . . ii. 254 i. 537 . . . i. 24 462, 469, 482 . i. 738 . . ii. 604 . . i. 112 ii. 689, 740 . i. 215, 221 ii. 18 Atlantic Mutual Insurance Co. i>. Huth i. 708 Atlas, The i. 567 Atlee V. Backhouse . . . . ii. 598 Attack ... Brarawell i. 488, 499, 507, 508, 509 Attenborough, Inre . . . . ii. 657 V. Clark ii. 220 V. Mackenzie ii. 218 V. St. Kath. Docks i. 534 ; ii. 542 Attersol v. Stevens . . . i. 397 Attorney and Solicitor-General's Act, Inre ii. 723 Attorney-General v. Andrews . ii. 308 V. Bailey ii. 751 .;. Brown ii. 628 !). Cox i. 412 V. Day ii. 372, 393 V. Eastlake ii. 308 INDEX OF ENGLISH CASES. Attorney-General v. Gt. East. Rail. Co. . . i. 165; ii. 286, 307 V. Gt. North. Kail. Co., i. 165 ; ii. 307 V. Guard. Soutlian pton ii. 308 V. R. C. of Pliysicians . . i. 570 V. Stepliens i. 389 Attree v. Hawe . . . ii. 310 Attwood II. Cliicljester i. 218 V. Earnest . . . i. 531, 627 V. Emery . . . ii. 463, 790 V. Mannings . . . . i. 90 (.-. Rattenbury . . . . ii 217 V. Seller . . . i. 7:34 V. Small . . . . ii. 516 Atty I'. Lindo . . . ii. 154 Atwood V. Ernest . . . i. 531 V. Maude . . . ii. 281 Aubert v. Gray . . . ii. 143, 144 Aubrev v. Eislier . . ii. 398 Augero v. Keen ii. 87 Augusta, The . . . ii. 71 Austen v. Baker . . . . i. 70 V. Ward . . . . . ii. 591 Auster v. Holland . . ii. 3-55 Austin r. Bunyard . . ii. 249, 062 V. Ih'ew .... . . ii. 191 V. Gt. West. Rail. Co. i. 692, 742, 752 ; ii. 696 V. Guardians of Bet mal Green i. 153 u. Gwinnell . . . . ii. 734 u. Manchester, &c •, 1 lailway Co . . . . i. 748, 790 V. Mills . . ii 858 V. Ward . . . . ii. 591 Australasia Bank v. Australia . i. 173 Australasia, Bank of v. Flo wer i. 143 V. Nias .... ii. 586, 861 Austr. R. M. Steam N. Co. V. Mar- zetti i. 150 Austr. Steam N. Co. n . M orse i. 708 ; ii. 73 Autey D. Hutchinson . . i. 125 Avery v. Cheslyn .... i. 393 Aveson v. Lord Kinnaird . . ii. 201 Ayles V. S. East. Rail. . . i. 743, 759 Aylesford, Earl of v. Morris . i. 201 AylofE r. Scrimpsliire . .ii. 837,838 Ayre's Case ii. 296 Azemar v. Casella ... ii. 527, 784 Babbage v. Coulburn Baker v. Gray . . , Bach V. Meats . . V. Owen . . Bache v. Proctor . Bachelor v. Gage . Backhouse v. Hall . V. Harrison Bacon v. Simpson Badeley v. Vigurs . Bafield v. CoUard . . ii. 724 . . . ii. 66 i. 486 ii. 444, 795 1.296 ii. 910 .ii 90 . . ii. 260 ii. 620 . . ii. 906 . . . i. 62 Bagge, Ex parte ii. 302 V. Mawby . . i. 466, 491 Baglehole v. Walters . ii. 541 Bagnall v. Carlton . . ii. 298 Bagsliaw v. East Un. . . . ii. 307 Bagster v. Earl of Portsmouth i. 235 Bagueley v. Ilawley . . . . ii. 503 Bahia and San F. My Co., lit re ii. 571 Bail V. Mellor . . i. 489, 501 Baildon v. Walton . . . ii. 886, 888 Bailer c. Baile . . . . i. 684 Bailey r. Bidwell . ii. 265, 266 V. Bodenham . . ii. 232, 249 V. Croft . . . i. 18 11. Cuckson . . . . . i. 183 r. De Crespigny ii. 802, 803 u. Edwards . ii. 97, 98, 99 V. Finch . . . i. 546 V. Harris . . . . . ii. 751 V. Johnston . ii. 958 I.. Macauley . i. 175, 178 c. Merrell . . . . ii. 617, 771 V. Porter . . . . . ii. 236 i\ Rimmall . . . . . i. 652 V. Sweeting . i 277, 777; ii 430 Bailey's Case . . . i. 41 ; ii. 569 BaiUie v. Kell . . . . . i. 648 Bain v. F'othergiU . . . . ii. 411 V. Kirke . . . . i. 299 Bainbridge v. Brown . . i. 202 V. Neilson . . ii. 169, 170 V. Pickering . . . i. 196 V. Wade . . ... ii. 84 Baines v. Ewing . . . . i. 94 V. Woodfall . . . i. 41 Baird v. Ross ii. 316, 317 Baker, Ex parte ii. 235, 237 V. Brooke . . ii, 914 V. Cartwright ii. 325, 326 V. Gray . ii. 36, 66 V. Greenhill . ii. 589 V. Harris . . ... ii. 32 V. Head . . . . ii. 836 V. Holtpzaflel . . i. 375 V. Keen . . i. 26, 197 V. Milward . . . i. 593 u. Monk . . . . . ii. 414 0. Sampson . . . i. 223 V. Welton . . . . . ii. 21 V. White . . . ii. 321 V. Windle . . . . . i. 698 Balbernie, In re . . ii. 866 Balch V. Lymes . . . . i. 684 Baldey v. Parker . . ii. 435, 442 Baldwin v. Alsager . . . ii. 653 Balfe V. West . . . . . i. 556 Balfour i'. Ernest i. 160; ii. 263 Ball, Ex parte . . ii. 866 V. Cullimore . . . i. 355 u. Dunsterville i. 47, 95, 146, 284 V. Gordon . . . . . ii. 261 Ballanline v. Golding . . ii. 713 INDEX OF ENGLISH OASES. XVH Ballard u. Shutt ii. S75 V. Way ii. 395 Bally V. Wells ii. 003 Bamfielrl v. Tupper . . . . ii. 889 Bamford v. lies ii. 87 V. Shuttleworth .... i. 533 Bampton v. Pauline .... i. 270 Bandy v. Cartwriglit . i. 359; ii. 578 Banks v. Gibson ii. 282 Banner, Ex parte . . i. 30 ; ii. 256 V. Johnson ii. 256 Bannerman v. White . i. 335; ii. 531 Bannister, In re ii. 394 u. Breslaus i. 730, 731 V. Hyde i. 493 Barber, Ex parte ii. 318 In re ii, 357 V. Brown ii. 59.3 V. Butcher ii. 58G V. Dennis i. 657 V. Fleming . . . . . ii. 154 c: Fletcher ii. 130 V. Fox i. 14, 268 V. Lamb ii. 861 V. Ricliards ii. 221 Barber's Case ii. 289 Barclay, Ex parte ii. 293 V. Bank of New South Wales ii. 849 V. Lucas ii. 89 Barden v. Keverberg .... i. 217 Bardwell v. Lydall . . . . ii. Ill Barfield u. Loughborough . ii. 282 Barfoot u. Freswell . i. 301 ; ii. ii^ V. Goodall i. 144 Barford v. Stuckev .... i. 67 Bargate v. Shortri'dge ii. 302, 707 Baring v. Clagett ii. 129 V. Stanton i. 662 Barker v. Birt i. 270 0. Blakes ii. 169 V. Cox ii. 698 V. Greenwood . . . . ii. 814 V. Hodgson . . i. 703 ; ii. 801 V. Janson .... ii. 116, 178 V. McAndrew .... i. 697 V. Parker ii. 89 u. Richardson ... . ii. 8.36 V. Stead i. 178 V. Talcot ii. 934 V. Windle i. 720 Barkworth v. Young . . ii. 329, 803 Barlow v. Bishop . . . i. 92 V. Leckie . . . . ii. 120 Barnard v. Goodscall . . . . ii. 904 u. Pumfret i. 207 Barned's Banking Co., In re . ii. 257 Barnes v. Pinkney ii. 898 V, Wood ii. 394, 412 Barnett v. Lambert .... i. 176 Barnewell v. Sutherland . . . i. 168 Baron v. Husband i. 63 Barough v. White ii. 246 VOL. III. Barr v. Carter . .... ii. 983 •. Kymer V. Reid . . V. Welch V. Wilson . . . Bell's Case and other Cases ii. 293, 296 Bellairs r. Ebsworth ... ii. 89 Bellasis v. Hester . . . ii, 226 Bellhouse i\ Mellur . i. 310 Bellingharn v. Clark . . . ii. 938 Belshaw v. Bush ii 221, 807, 811, 839 Belworth v. Hassell . ii. 393 Beman v. Rufford . . . ii. 307 Bench v. Merrick . . . ii. 337 Bendix v. Wakeiuan .... i. 209 ii. 695 ii. 232 ii. 650 ii. 905 . i. 70 ii. 745 . ii. 32 , 698, 699; ',i. 112, 794 Co. i. 7(;2, 770, 779 . ii. 143 . ii. 35 ii. 415 ii. 794 . i. 104 Co. V. i. 773, 774 . ii. 302 ii. 98 ii. 148 ii. 130, 144 . ii. 17 i, 816 ii. 251, 593 i. 444, 445 . ii. 148 ii. 221 i. 723 ii. 743 ii. 84 i. 369 335 INDEX OF ENGLISH CASES. XIX Bendry v. Price . . . . ii. 737 Benliam v. Gray ii. 281 V. Un. Gur., &c. . . ii. 188, 534 Bennett, Ex parte ii. 302 V. Bayes i. 474 V. Brunifit i. 280 t'. Clough ii. 716 V. Henderson . . . . ii. 471 ['. Ingoldsby .... ii. 382 u. Ireland ii, 367 u. Robbins i. 471 I/. Man. Slietr. & Lin. Ry. Co. i. 810 V. Mellor .... ii. 455, 467 V. Womack . . . . i. 309 Bensley v. Bignold . . . . ii. 756 Benson i'. Blunt i. 728 V. Chapman ... ii. 166, 107 V. Duncan ii. 74 V. Heatliorn ... ii. 286, 311 V. Paul i. 245 Bent V. Wakefield Bank . . . i. 19 Bentall v. Burn ii. 439 Bentley v. Craven . . i. 665 ; ii. 278 D. Griffin i. 217 V. MacKay ii. 784 Benwell v. Inns . ii. 706, 739 Benyon v. Cook . . i. 201 r. Godden i. 687 Berena v, Rucker . . . ii. 143 Beresford v. Browning . . i. 132 V. Montgomery .... i. 717 Bergheim v. Great Eastern Ry. i. 774 Berkeley i'. Hardy . . . . i. 65 Bermingham v. Sheridan ii. 560, 674 Bermon v. Woodbridge . . , ii. 182 Bermondsey v. Ramsay . . . ii. 858 Bernard, Ex parte . . . . ii. 303 Bernaseoni v. Anderson . ii. 604 Bernstein u. Baxendale . i. 761, 778 Berrey v. Lindley i. 420 Berridge v. Fitzgerald . . . ii. 236 Berrie v. Howitt ... i. 684 Berriman «. Peacock . . . i. 401 Berringer v. Gt. East. Ry. . i. 692, 742 Berrisford v, Milward ... ii. 36 Berry v. Alderman . . . ii. 223 V. Da Costa ii. 329 V. Henderson . . . . ii. 751 Bertie v. Beaumont . . . i. 345 Berwick v, Horsfall i. 93 Berwick, Mayor of, v. Oswald ii. 87, 803 Bessela v. Stern ii. 324 Bessell v. Landsberg . . i. 410, 424 Best V. Hamand . ". . ii. 383, 385 V. Jolly ii. 764 V. Yates ii. 681 Best's Case ii. 293 Bestwick, In re ii. 866 Bethell r. Blencowe . . . ii. 656 Betsy, The ... . ii. 73 Betts V. Burch .... ii. 693 I). Gibbins . . i. 688 ; ii. 585, 592 Betts V. Kimpton . . . ii. 358 Bevan v. Gething . . . . ii. 888 V. Lewis i. 522 V. Lord Oxford . . . ii. 898 I.. McDonnell . . i. 235 1. McMahon . . . ii. 346 f. Whitmore ... i. 228 Bevans v. Rees . . . ii. 825 Beverley v. Beverley . . . ii. 706 V. Line. Gas Co. . i. 150 Beverley's Case . . i. 235 Beyer v. Adams . . . . il. 749 Beynon v. Cook . . . . i. 201 Biccard v. Sheppard . ii. 124 Bickerdyke v. BoUman . . ii. 240 Bickerton v. Burrell . . i. 57, 113 Bickford v. D'Arcy . i. 594 V. Parson . . i. 381 ; ii. 904, 905 Bickly V. Newland . . . . ii. 699 Biddell v. Dowse . . . . i. 34 Biddle v. Bond i. 531, 533 , 626, 073 ; ii. 54 V. Levy . . . , . , ii. 584 Bidgood V. Way . . . i. 209 Biederman v. Stone i. 688, B90 ; ii. 664 Billen v. Biguell . . . i. 225 Bigg, Ex parte . . . . ii. 206 V. Strong . i. 281 V. Whisking . . . ii. 443 Bigg's Case . . . ii. 303 Bigge V. Parkinson ii. 510, 512 Biggins i: Goode . . i, 508 Biggs B. Lawrence . ii. 752 Bignold, £.r;)arte ii, 31, 290 I'. Waterhouse . i. 827 Bilbie V. Lumley . . . . ii. 593 Bilboroiigh v. Holmes . i. 143 Bill V. Bament . ii. 438 V. Darentli Ry. Co. . . i. 166 V. Lake . . ii. 876 Bingham u. Bingham . ii. 422 !.'. Corbitt . . ii. 97 Binnington r. Harwood .ii. 29 V. Wallis i, 19 Binns v. Pigott . . i. 454 Birch, Ex parte . . . ii. 301 V. Earl of Liverpool . i. 272 fc. Ellames ii. .33, 38 I/. Jervis . ii. 726 r. Stephenson . . . . ii. 688 V. "Wright . i. 375 376 ; ii. 13 Bird V. Astcock .... *. i. 711 1-. Blosse i. 271, 274, 275 ; ii. .329 V. Boulter . i. 281, 282 u. Brown . . . . ii. 488 v. Gammon . i. 269 ; ii. 840, 884 V. Gt. North. Ry. . . . i. 743 V. Higginson . . ii. 651 V. M'Gaheg . i. 570 Birk r. Guy ... . ii. 883 Birk. Lane, &c., Ry. Co. u. Cotes- worth . . . . . . ii. 927 XX INDEX OF ENGLISH CASES. Birkett v. Whitehaven, &c., Ry. Co i. 819 V. Willan . . . . i. 770. 793 Birkley v. Presgrave . . . i. 734, 737 Birkmyr v. Darnell . . . i. 260, 2UH Birmingham & Stafford Gas Light Co., Ex parte . . . i. 4G5 V. Sheridan ... ii. G-j'.), 574 Birmingham Banking Co., E.r parte i. 164; ii 204 Bisdee, Ex parte ... . . ii. 42 Bishop, £^ ;)arte . . . ii. 112, o!JU V. Bryant . . i. 490 V. Curtis ii. 922 i'. Eagle V. Hatch V. Howard .... u. .Jersey, Countess . I'. Pentland .... V. Kowe ... Bize !■. Dickason . . Blachford v. Kirkpatrick V. Preston . . . Black v. Baxendale V. Homersham . . V. Siddawaj' V. Smith . . . . V. The Ottoman Bank Blackburn, Ex parte c. M.ickey . !-. Smitli V, Warwick Blackenhagen v. Blundell r. Lond. Ass. Co. Blackett v. Bates . . L'. Hoy. Exch. Ass. Co Blackford v. Kirkpatrick Blackliam v. Doras . . Blackhurst v. Cockell . . . Blacklock v. Barnes Blacklow V. Laws . . . Blackmore v. Brist. & Ex. Ry i. 120 1. 353, 426 . i. 521 . ii. 170 . ii. 809 . ii. 594 . ii. 386 ii. 729 . i. 793 ii. 507 . ii. 594 . ii. 82.5 . ii. 95 . ii. 824 i. 26, 196 . ii. 786 . ii. 22 11 331; 134, i. ii. 2J4 158 098 ii. Blackwell v. M'Naughton V. Nash Blades v. Arundale ". Free . . . Blagden v. Bradbear . Blaikie ;'. Stembridge Blair v. Bjomley . V. Ormond Blake, Ex parte . V. Foster . . V. Great Western l!v. V. Mid. R. Co. . u. Nicholson . «. Phinn . . Blake's Case . . . Blakeley, Ex parte . Blakeley Ord. Co., In > Blakey v. Dinsdale 174 250 240 . ii. 127 ii. 23 . ii. 387 Co.i. 511, 521 ; ii. 539, 670, 095 ii. 0.54 ii. 793 1.481 i. 220 ii. 304 i. 703 ii. SSO ii. 875 ii. 200 ,356 796 i. 825 588, 619 385, 404 . ii. 847 . ii. 305 . ii. 896 . 11.444 11. Blanchet v. Powell's Llantwit Coal Co . i. 721 Blandy u. 'Herbert . . . ii. 628 Blanford o. Morrison . ii. 7.50 Blasco V. Fletcher i. 706 Blasdale v. Babcock ii. 503 Blaxton v. Heath . . . . ii. 359 Bleaden v. Charles . . . ii. 591 V. Hancock . . i. 589 Bleakly v. Smith . . i. 278 Blenkinsop v. Clayton . ii. 474 Blenkiron v. Great Cent •al Gas Consumers' Co. i. 398 Blest V. Brown . . . . ii. 104 Blewitt V. Hill .... . . i. 647 Blight V. Page . . . i. 703, 728 Bliss V. Smith . . i. 578 Blisset r. Daniel . . . ii. 280 Blithe's Ciise . . ii. 331 Blithman v. Martin . ii. 725 Bloomer v. Bernstein . . . . ii. 830 Blore V. Sutton . . . . i. 281 Blount V. Pearman . . . ii. 614 Blower i\ Gt. West. Ry Cu. i. 756, 782 Blowers v. Sturtevant i. 223 Bloxam v. Metrop. Ry. Co . ii. 290 i: Saunders ii. 452 Bloxsome u. Williams ii. 756 Bluck V. Capstick . . . . . ii. 280 V. Gomperz . . ii. 756, 854 V. Malalue .... . . ii. 286 Bluett !'. Osborn . . . . ii. 507 Blundell v. Brettargh . . ii. 414 Blunden v. Desert . . . . i. 684 Blyth V, Carpenter . i. 523 V. Dennett . . . i. 424 Boaler v. Mayor . ii. 100, 857 Boardman v. Sill . . . i. 616 Boast V. Firtli . . i. 658 ; ii. 802 Bobbett V. Pinkett . . i. 519, 553 Bock V. Garrissen . i. 618 Boddington r. Castelli . ii 949 Bodeliam v. Hoskins . . . i. 646 !•. Purchas . ii. 805, 823 Boden ;;. French . . . . i. 665 Bodger v. Arcli . . 1. 204 ; ii. 887 Bodwell !'. Parsons ii. 791 Boehm v. Bell . . . . ii. 118 0. Campbell . . . . . ii. 83 u. Wood ii. 414 Bogg !). Pearse . . . . i. 182, 242 Bolch V. Smith . . . . i. 642 Bolckow r. Seymour . . . i. 327 Bold V. Hiitcliinson . ii. 705 V. Rayner .... . . ii. 433 Bolingbroke i'. Kerr . . i. 204 Bolitho, Ex parte . . i. 522 Bolland, Ex parte . . . . ii. 334 Bolognesi's Case . i. 164 Bolton V. Bishop of Carlisle . i. 442 V. Gladstone . . . ii. 129 V. Hillersden . . . i. 92 INDEX OF ENGLISH CASES. XXI Bolton V. Lan. Ey. Co. . ii. 489, 493 V. Lee j. 80 V. London School Board . ii. 37G V. Rrentice i. "222 V. Richard ii. 805 Bolton, Lord, v. Tomlin . i. 345, 383, 506 ; ii. 655 Bonur v. Maodonald .... ii. 96 Bond i\ Gibson ii. 497 u. Maze i. 209 V. Nurse , ii. 0U6 V. Nutt ii. 127, 157 V. Pittard i. 129 V. Rosling ... . i. 281, .343 V. Simmons . . i. 211; ii. 361 V. Wanlen ii. 249 Bone I'. Eckless . . . ii. 600, 760, 768 Bonfleld «. 1-lassall ii. 321 Bonelli's Tel. Co., In re . . . i. 161 Bonion's Case i. 527 Bonita, Tlie i, 104 Bonnewell v. Jenkins i. 38 Bonomi v. Backhouse . . . ii. 880 Bonser v. Cox ii. 94 Bonzi V. Stewart i. 83 Boone v. Eyre ii. 793 Boorm.nn i-. Brown . i. 605 ; ii. 694 V. Nash ii. 477, 947 Booth V. Gair ii. 173 V. Macfarlane i- 428 ... Turle i. 2^2 V. Earl of Warrington . . ii. 322 Boothby v. Sowden . ... i. 34 Boraston v. Green i. 430 Bornmann v. Tooke .... i. 700 Borradaile v. Brunton . . . ii. 675 Borrett !;. Gomeserra . . . . ii. 371 Borrierw. Hutchinson . 1. 824; ii. 479 V. Imperial Ottoman Bank . i. 82 Borrowman i;. Drayton . . . ii. 460 V. Free ... . . . ii. 71)0 V. Kossel ii. 514 Bos V. Helsliam . . . . ii. 391 V. Hetham .... i. 602 Bosanquet v. Wray . . ii. 274, 821) Boson V. Sandford i. 690 Bostock p. Hume ii- 353 V. Jardine . . i. 605 ; ii. 432, 599 Boswell V. K'ilborn . ii. 419, 466, 470, 474 Bothlingk v. Inglis . . . . ii. 489 Bottomicy v. Bovill . . . . ii. 160 u. Fisher ii. 258 V. Nuttall .... ii. 498, 808 Bouillon V. Lupton . . . . ii. 120 Boulter, In re i. 295 V. Arnott ii. 475 V. Peplow i. 506 Boulton, Ex parte ii. 78 V. Dobree i- 238 V. Jones . . . . i. 678; ii. 894 u. Reynolds i- 495 Bourne v. Diggle i. 559 V. Fosbrooke i. 626 V. Freetii . . i. 141 ; ii. 271, 315 V. Gatclifte . . . i. 332, 716, 795 V. Mason ... . i. 60, 62 0. Seymour ii. 524 Bousfield V. Hodges .... ii. 387 V. Wilson ii. (302 Boussmaker, Ex parte . . . i. 237 Bowdell V. Parsons . ii. 464, 795, 796 Bowden v. Home ii. 860 V. Vauglian ii. 130 Bowen, Ex parte . . , ii. 319 II. Asliley ii. 615 V. Fox . . . . . . ii. 656 ,,. Hall i. 648 i\ Morris .... . . i. 81 ti. Owen ... . . ii. 826 Bower v. Cooper ii. 390 Bowers v. Lovekiu . . ii. 760 V. Nixon ii. 688 Bowes V. Foster i. 338 V. Sliand . . i. 331,332; ii. 516 Bowker v. Burdekin . . . . i. 53 Bowlby V. Bell i. 26-3, 670 Bowles V. Orr ii. 586 V. Round ... ii. 395, 427 V. Waller ii. 894 Bowman v. Nash ii. 955 i: NicoU ii. 620 Bowring v. Sheplierd . . . ii. 558 Bo.x V. D.ay • . ii. .323 Boyce n. Green . . . . ii. 364 Boyd V. Brooks .... ii. 106, 937 V. Dubois . . i. 782 ; ii. 126, 140 V. Emmerson . . . . i. 541, 543 u. Hind .... . . ii. 851 1-. Lett ii. 469 V. Sliorrock .... i. 396 V. Siffkin ii. 458 Boydell i\ Drummond i. 272; ii. 883 Boyer v. Blackweil . . . ii. 369 Boyfleld v. Brown ii. 181 Boyle «. Brandon ii. 668 Boyman ;;. Gutch ii. 382 Boys V. Ancell ii. 693 V. Pink i. 777 Boyter v. Dodsworth . . . . ii. 596 Brace v. Duchess of Marlborough ii. 35 I'. Wehnert .....'. ii. 700 Bracegirdle v. Heald .... i. 272 Bracewell v. Williams . . i. 16, 27 Bracey v. Carter . . . . i. 593, 596 Brackenburg v. Pell .... i. 594 Bradburn v. Great Western Ry. ii. 681 Bradburne v. Botfield . . i. 76 ; ii. 938 Bradbury v. Foley .... i. 437 V. Morgan .... ii. 105, 862 Bradford v. Svmondson . . . ii. 120 Bradlaugh i'. De Rin . i. 317 ; ii. 658 Bradley v. Copley ii. 51 u. Gregory Ii. 853 XXll INDEX OF ENGLISH CASES. i. 263; ii. 556 . ii. 888, 889 i. 758, 780 . . . i. i06 i. 224; ii. 582 ii. 590, 598 ii. 922 i. 324; ii. 670 i. 95 ; ii. 525 Bradley v. Hoklsworth V. James . . V. Waterliouse Bradly v. HeiiUi . . Bradsliaw v. Beard V. Bradsliaw . . V. Lane. & York Ry. Co. Brady i: Oastler . r. Tod . . Bragg V. Anderson ii. 160 Braitliwaite !'. Cooljsey . . . i 470 V. Gardiner ii. 229 V. Slcofiekl . . . . . i. 174 Bramley v. Cliesterton i. 446; ii. 681 Brampton v. Beddoes . . ii, 742 Bramston y, Kobins . . . ii. 804 Bramwell r. Eglingtou . . i. 473 V. Lacy i. 390 Brand c. Boulcott i. 78 Brandao v. Barnett .... i. 553 Brandon v. Brandon .... i. 471 V. Cnrling . i 237; ii. 142, 143 V. Hubbard i. 129 V. Nesbitt i. 237 V. Pate ii. 947 0. Scott . . . , . i. 532, (j27 Brandt i: Bowlby ii. 456 V. Heatiij; ii. 894 V. Lawrence ii. 472 Branley v. S.-East. Ry. Co. i. S19, 806. 807 Branston, Tbe ...... i. 507 Br.antom v. Griffiths ... i. 260 Brasliford v. Buckingliam . . i. 209 Brass r. Maitland .... i. 612 Brassington v. Ault . i. 205 Braunsteiii v. Accidental Death Insurance Co. ... ii. 724 Bray r. Mayne i. 518 Br.aysliaw i\ Eaton . . . i. 197, 199 Bray tliway to v. Hitchcock i. 353 ; ii. 621 Brazier v. Polytechnic Inst. . ii. 581 Brecknock Co. v. Pritchard . i. 380 Bree v. Holbech ... ii. 419, 879 Bremner v. Williams .... i. 740 Brentwood Brick Co., In re . ii. 426 Brereton v. Chapman . . . i. 729 Breslauer v. Brown . . ii. 837, 865 Brett V. Close ii. 725 V. Clowser ii. 398 V. Cotton . . . . . ii. 512 V. Cumberland i. 300, 362 ; ii. 904, 926, 942 V. East India & London Ship- ping Co i. 708 , ii. 113 , ii. 803 . ii. 915 , ii. 897 , i. 235 i. 300 , i. 207 Brettel v. Williams Brewster v. Kitchell V. Kifchin . . Brice v. Bannister . V. Berrington . V. Carre . . , v. Wilson . . Briddon v. Gt. North. Ry, Co. i. 752 Bridge v. Cage i. 16 V. Garrett ii. 815 V. Wain . . . . ii. 460, 479, 547 Bridges v. Hunter ii. 132 V. Lond. & N.-West. Rv. . i. 754 V. Potts i. 401, 417 Bridgman r. Gill i. 546 Brierly v. Cripps ii. 276 u. Kendall . .... ii. 51 Briggs, Ex pcnte . . . . ii. 297 r. Jones ... . . ii. 34 V. Sowry ... . . i. 465 I'. Wilkinson 1. 105 ,: Wilson . . . . ii. 889 Bright V. Hutton ii. 318 Brightens, Jlx parte .... ii. 40 Brighty v. Norton ii. 790 Brigstocke v. Smith . . . . ii. 883 Brind v. Dale .... i. 745, 746 V Hamshire . . . . i. 63 Bringloe v. Morrice ... i. 519 Brisbane r. Dacrcs . . ii. 593, 695 Bristol, Corporation of, v. West- cott ... .... i. 360 Bristol, Dean, Sec. of. r. Jones . i. 305 Bristol, Earl of, v. Wilsmore . ii. 810 Bristol & Ex. Ry. Co. <;. Collins i. 796, 818 Bristol Ry. Co., Re .... i. 246 Bristow V. Eastman . . . . ii. 819 u. SequcviUe ii. 621 V. Towers i. 237 Bristowe v. Wliitmore . . i. 94, 687 Britain i\ Rossiter i. 256 British American Telegraph Co. v. Colson i. 45 British Columbia Saw Mill Co. v. Nettleship . . . . i. 704, 821, 824 British Empire Ship Co. v. Somers ii. 582 British Linen Co. v. Drummond ii. 891 British Mutual Investment Co. v. Smart ii. 924 British Prov., &c., In re i. 160 ; ii. 302 British Seamless Paper Box Co., In re ii. 298 British Wagon Co. v. Lea . . i. 589 Brittain v. Lloyd . i. 688; ii. 580, 590 Britten v, Hughes ii. 731 Britton v. Bathurst . . . . ii. 928 V. G. AV. Cotton Co. . . i. 641, 643 Broad y. JoUyfe ii. 739 Broadbent v. Ledward . . i. 532, 627 Broadwater v. Bolt .... i. 608 Broadwood u. Granara . . . i. 455 Brockelbank, Ex parte . . . i. 195 V. Sugrue i. 90 Brocklehurst v. Lawe . . . i. 484 Brodie v. Howard i. 106 Brogden v. Met. Ry. Co. i. 38, .39, 45 Bromage v. Lloyd ... ii. 221, 245 INDEX OF ENGLISH CASES. xxm Bromage v. Vaughan . . . ii. 236 Bromley v. HolJen .... i. 48(i Brook, Ex parte ii. 956 Brooke v. Pickwick . . . i. 758, 761 Brooke, Lord, v. Uounthwaite ii. 39U Brooker v. Scott i. 1.98 !■. Wood ii. 753 Brookman's Trust, In re' . . ii. 801 Brooks I'. Beckett ..... ii. 606 V. Drysdale i. 301 V. Elkins ii. 654 V. Haigh ii. 84 V. M'Uonnell ii. 181 u. Mitchell ii. 246 Broom v. Batchelor ... ii. 84 u. Davis i. 590 V. Hall ii. 680 Broomfield v. Southern Ins. Co. ii. 70 Broomhead, Be i. 613 Brotherhood, /n !-e . i. 160; ii. 302 Brotherson v. Barber .... ii. 169 Brough r. Humfrey .... i. 640 V. Whitmore . . i. 333; ii. 121 Broughton v. Broughton . . i. 569 V. Hutt ii. 784 Brouncker v. Scott .... i. 730 Brown «. Accrington Cotton Co. i. 642 V. Ackroyd i. 222 V. Andrew i. 176 V. Arundel i. 480 V. Banks i. 658 V. Bristol & Ex. Ry. Co. . i. 792 V. Brine ii. 717 V. Burtinshaw i. 421 V. Byers i. 169 V. Byrne i. 332 V. Carstairs .... ii. 143, 145 V. Cole ii. 27 o. Crump i. 14 V. Davis ii. 246 V. Dawson i. 429 V. De Winton . . . . ii. 245 V. Duncan ii. 753 V. Edgington ii. 510 V. Elkington ii. 521 u. Glenn i. 474 V. Gordon i. 143 V. Hare ii. 455 V. Harraden ii. 247 V. Hodgson . . i. 815 ; ii. 456, 589 V. Jodrell i. 235 V. Johnson i. 729 V. Kempton ii. 824 V. Kennedy i. 570 V. Kidger ii. 259 V. Langley i. 325, 326 V. Lee ii. 108 V. Lockhart ii. 21 V. London, Mayor of . . ii. 803 V. M. S. & L. Jiy. Co. . . i. 790 ij. Metrop. Count. Life Ass. Co. . . i. 484; ii. 10, 12,65 Brown v. Muller ii. 478 V. North i. 725 V. Overbury ii. 7'H V. Pendiebury . . . . ii. 914 V. Powell Coal Co. . . . i. 705 V. Price ii. 213 V. Raindle ii. 416 ■;. Roy. Ins. Soc. . i. 368 ; ii. 790 u. Selwyn ii. 935 V. Sewell ii. 28 V. Shevill i. 479 V. Stapyleton i. 732 V. Storey ii. 16 V. Symons i. 635, 649 V. Tanner . . . . i. 718; ii. 67 V. Tapsoott .... ii. 275, 277 V. Tayleur .... . ii. 161 17. Vawson ii. 622 V. Wilkinson i. 715 Brown's Case ii. 210 Browne v. Symons .... i. 649 Browned v. Bonney . . . . ii. 238 Browning v. Morris . . . . ii. 601 !•. Stallard ... i. 270; ii. 841 V. Wright ii. 419 Bruce, Jix parte , . . . ii. 40 .,•. Hunter ii. 673 V. Jones ii. 178 Bruere v. Wharton .... ii. 29 Brunswick, Duke of, i'. Crowl ii. 759 !'. King of Hanover . . . i. 2-i'J Brunt V. Midland Ry. Co. i. 761, 778 Brunton, Et parte . . . . ii. 896 Bryan v. Clay ii. 930 V. Horseman . . . . ii. 883 V. Lewis ii. 746 V. Wetherhead .... i. 349 Bryans r. Nix . . . i. 64; ii. 455 Bryant v. Busk ii. 389 V. Flight i. 570 Brydges v. Kilburne . . i. 400 Brydon v. Stuart i. 643 Bryne v. Leon Van Tien Hooen i. 40 Bryson v. Whitehead . . . ii. 699 Bubb V. Yelverton ii. 746 Buchan's Case . . . . . ii. 293 Buchanan v. Findlay .... i. 615 V. Rucker ii. 585 Buck V. Hurst . . . . . ii. 605 V. Lee ... . ii. 948 V. Lodge ii. 418 V. Robson ii. 579 Buokland v. Butterfield . . . i. .391 . Wheeler ii. 437, 441 Busk V. Davis .... ii. 448, 484 V. Fearon ... . ii. 73 c. Royal Exch. Ass. Co. ii. 141, 192 Busyard v. Capel i. 475 Butcher v. Butcher .... ii. 3.33 V. Lond. & S.-West. Ry. Co. i. 775, 795 V. Stapley ii. 370 V. Steuart i. 269 Bute, Marquis of, u. Thompson i. 367, 703 ; ii. 803 Butler !'. Basing ... i, 827 V. Cumson . . . i. 219 1". Heane . . . . i. 761 u. Knight . . i. Ill, 594, 596 V. Wildman . . . . ii. 141 V. Woolcott i. 801 Butt V. Gt. West. Ry. Co. . . i. 780 Butt's Case ii. 'J21 Buttemere v. Hayes .... i. 2."i8 Butterfield v. JIarler . . i, 661 Butterworth v. Brownlow i. 757, 758, 797 Button V. Thompson .... i. 574 Butts V. Swan ii. 662 Buxton i'. Baughan . i. 531, 617, 027 V. Jones . . . . ii. 232 V. N.-East. Ry. Co. . i. 744, 796, 819 o. Lister ij. 480, 097 V. Rust i. 277 Byrne v. Fitzhugh . . . . i. 75 u. Schiller i, 719 V. Van Tien Houen ... i. 39 Byrom v. Tliompson . . . . ii. 619 Byson v. Whitehead . ii. 740 By water y. Richardson . . ii. 369 INDEX OF ENGLISH OASES. XXV Caballeeo v. Henty . . . . ii. 394 Caddk; v. Skidmore . . . . ii. 553 Cadeval, Duke de, v. Collins . ii. 593 Cadman i^. Horner ii. 413 V. Lubbock ii. 8'25 Cadmore v. Nelson . . . . ii. 868 Cadogan v. Kennett . . . . ii. 835 Cage V. Acton ii. 352 Caliill !;. Dawson i. 068 V. Lond. & N.-West. Ry. Co i. 750 773, 774 Cailiffy. Danvers i. 610 Caine v. Coulton . ii. 807, 812, 827 V. Horsfall . . . i. 677 ; ii. 5il Cairns v. Robins . . . . i. 606, 792 Calabar, Tiie i. 716 Calcutta Steam Nav. Co. v. De Mattos ii. 455, 470 Caldecott v. Smytliies . . i. 425, 436 Caliler v. Dobbell . . . i. 88 Caldiuott 11. Grifllths ... ii. 315 Caldwell v. Ball ii. 495 V. Dawson ... . ii. 209 Caledonian & Dumb. Ry. Co. d. Helensburg Mag i. 165 Calland v. Lloyd i. 86 Callander v. Howard . . . . ii. 811 V. Oelrieks i. 668 Callislier v. Bischoffliteim . , i. 30 Callo V. Bruncker i. 649 Callow V. Lawrence . . . . ii. 218 Calonel v. Briggs ... ii. 462, 482 Calton V. Bragg ii 673 Calverley v. Williams . . . ii. 516 Calvert v. Baker .... ii. 252 V. Gordon ii. 92 Calvin's Case i. 230 Calys's Case . . . i. 455, 456, 463 Camac v. Warriner . ii. 482, 511 Camberwell Building Society v. Holloway ii. 381 Cambrian Steam Packet Co., In re ii. 677 Cambridge v. Anderton . . . ii. 162 Cambridge, Mayor of, v. Dennis ii. 86, 87 Camden, Marquis of, v. Batter- bury i. 578 Camidge v. Allenby . . . . ii. 231 Cammell v. Sewell i. 104, 317 ; ii. 164 Camparini v. Woodbum i. 677, 681 ; ii. 862 Campbell v. Fleming . . ii. 777, 778 V. French ii. 226 V. Im Thurm ... ii. 837, 865 V. Junes ii. 144 V. Jones ii. 794 V. Lewis ii. 900 V. Mersey Docks . . . . ii. 455 V. Webster ii. 238 V. Wenlock, Lord . . . i. 447 Campion v. Colvin . . . . i. 717, 722 Campion r. Cotton ii. 331 Can V. Read ii. 819 Candell v. Shaw i. 220 Cane v. Allen, Lord . . . . ii. 779 V. Baldwin .... ii. 382, 404 V. Chapman .... i. 181 Canham v. Barry . . ii. 3u2, 522, 772 V. Rust ii. 908 Cannan v. Bryce ii. 718 V. Hartley i. 410 V. Meaburn i. 704, 707 Canute v. Spanton .... i. 613 Canning, Lord, v. Raper . ii. 633 Cannock v. Jones i. 380 Canot V. Hughes ii. 265 Capel V. Thornton ii. 814 Cape's Executors, Ex parte . . ii. 304 Capp !i. Lancaster ii. 795 V. Topham ii. 592 Csipper, Ex pat te , ... ii. 318 V. Wallace i. 693, 730 Capper's Case i. 200 Card V. Hope ii. 729 Cardwell v. Lucas i. 363 V. Martin ii. 620 Carey v. Barrett ii. 730 V. Goodinge ii. 935 Carew, Ex parte ii. 865 V. Cooper ii. 735 V. Duckworth ii. 239 Carew's Estate, In re . . . . i. 548 Cargill f. Bower ii. 287 Cariss V. Tattersall . . . . ii. 254 Carleton v. Earl of Dorset . . ii. 330 Carlun v. Kenealy ii. 244 Carmarthen, Mayor of, v. Lewis i. 151 Carmichael, Ex parte . . . . ii. 318 Carniier v. Mercer i. 375 Carnegie v. Waugh .... i. 56 Carnes v. Nisbott i. 400; ii. 739, 740 Carpenter v. Blandford . . . ii. 406 V. BuUer i. 336 V. Creswell ii. 794 V. Dunsmore ii. 920 ij. Parker . . . . i. 367 ; ii. 16 Carpue o. Lond. & Brighton Ry. Co i. 74.3,814 Carr w. Acramann . . . . ii. 65, 66 V. AUatt ii. 65 u. HinchclifE i. 82 V. Jackson i. 122 V. Lane. & Yorks. Ry. Co. i. 748, 769 V. Lond. & N.-West. Ry. Co. i. 337 i;. Montefiore . . . i. 294; ii. 149 V. Smith ii. 277 Carrick, Ex parte ii- 318 Carrier Dove, The .... i. 568 Carrington v. Roots .... i. 259 Carrol v. Blencow i. 226 Carruthers v. Payne . . . ii. 449 V. West ii. 226, 246 XXVI INDEX OF ENGLISH CASES. Carstairs r. Tajlor .... i. 451 Carter o. Boehra ... ii. 1.31, 132 V. Carter ii. 333 I. Criult ii. 518 i;. Cummins i. 367 V. Dean of Ely . . . . ii. 401 V. Flower . . ii. 233, 23t), 240 V. James ii. ^60 r. King ii. 704 V Toussaint . . . . ii. 437 V. Wake ii. 51 V. Whalley . . . . i. 142, 144 V. Williams . . . ii. 002 V. WormalJ . . . ii. 848 Cartwriglit v. Cartwright . . ii. 354 t'. Hateley .... i. 075 V. Pilkney . . . ii. 915 Carvallio v. Burn . . . ii. 948 Casborne v. Barsliam . . . . ii. 779 r, Scarfe ii. 10 Casliill V. Wright ... . i. 460 Casmajor v. Strode . . . . ii. 392 Cass V. Eudele . . . . , ii. 373 Casseres u. Hell . . . . i. 238 Casson V. Roberts ... . ii. 405 Castellain zi. Thompson . . i. 016 V. Preston .... ii. 195, 373 Castellan v. Hobson . . . . ii. 562 Castle r. Sworder . . ii. 437, 4.38, 405 r. Wilkinson ii. 412 Castleman v. Hicks .... i. 492 Castling i'. Aubert .... i. 270 Castrique r. Bernabo .... ii. 237 v. Buttigieg . . . ii. 221,229 V. Imrie ii. 585 Caswell V. Coare .... ii. 547 V. Worth . ... i 640 Catchpole v. Amberg., Nott. & Bost., &c ii. 321, 566 Catherani Ry. Co., Re ... \. 810 Catherine, The ii. 72 Catlierwood v. Caslon . . . ii. .344 V. Chaband ... . ii. 934 Catley v. Wintringhara . . . i. 717 Catlin V. King 1. 276 Cato !). Irving . . . . i. 718; ii 68 Caton V. Caton i. 271, 278; ii. 329, 370 Cator V. Gt. West. Ins. Co. of New York ii. 140 Catt V. Howard ii. 021 v. Tourle . . ii. 708, 741, 901 Catterall v. Hindle . . ii. 815, 81S Cattle V. Gamble . . ii. 628, 638, 651 Cattley v. Arnold . . . i. 374 Catton V. Simpson ... . ii. 96 Caunt V. Thompson . . . ii. 236 Cavan.agh r. Such ... . i, 781 Cave V. Coleman ii. 519 V. Hastings i. 275 V. Mills ii. 595 Cawley v. Furnell ii. 883 Cawthorn v. Cordrey . . i. 272 Cawthron v. Trickett Cazenove v. Brit. Eq. Chadwick v. Clarke . V. Sills . . Challis V. Casborne Chalmers, i'j' ;)a;?e Chaloner v. Bolckow . Chamberlain c. Lee . . i. 730 ii. 201, 207 . ii. 656 . . ii. 653 . . ii. 32 ii. 483, 494 . . i. 371 . . ii. 414 V. Napier i. 315 V. Williamson ii. 861 Chamberlyn i: Delarive . . ii. 810 Chambers i: Crabbe . . . . ii. 330 V. Donaldson ii. 355 V. Griffiths . . ii. 369, .392 .,. Howell ii. 281 ^. Manch. & Blilfd. Ry. Co. ii. 310, 733 V. Miller i. 549 Chambres i. Jones .... i. 18-5 Cliampernown v, Scott . . . i. 685 Champion v. Plummer . . i. 270 V. Rigby . ii. 779 Chandelor v. Lopus . . . . ii. 515 Chandler v. Doulton . . i. 489, 509 V. Grieves . . . i. 649, 650 Chandos, Duke of, v. Talbot . ii. 398 Chanter v. Dickinson . . ii. 646, 651 V. Hopkins ... ii. 511 V. Johnson ii. 022 Chapel V. Hickes .... i. 582 Chaples V. Brunswick Building Society i. 122 ; ii. 309 Chaplin v. Clarke .... ii. 316 V. Levy . . . . ii. 227 V. Rogers . . . . ii. 473 Chapman v. Allen . . . i. 615 V. Beckington . ... ii. 89 V. Bluck . . . . i. 344 V. Bradley ... . ii. 332 V. Caliis i. 275 I. Chapman . . i. 597 ; ii. 39 V. Eraser . ... ii. 184 V. G. West. Ry i. 794 V. Gwytlier . . . ii. 525 I'. Milvain i. 168 I'. Morton ii. 475 V. Shepherd . . i 688 ; ii. 557 V. Speller . . ii. 419, 504, 544 V. Van Toll i. 593 V. Walton i. 668 Chapman & Barker's Case . . ii. 669 Cliappel y. Comfort . . . i. 730, 731 V. Poles ii. 599, 601 Chappel's Case ii. 306 Chappie V. Cooper i. 198, 199 ; ii. 582 Chard v. Fox ii. 236 Charles v. Blackwell .... i. 549 V. Marsden ii. 225 Charlotte, The i. 568 Charnley v. Grundy . . . . ii. 255 Chartered Merc. Hk. of India v. Dickson ii. 245 INDEX OF EKGLISH CASES. xxvu Charters v. Bayntun . . Cliase V. Westmore . . (^liasemore v. Turner . . Clmsteaiiiieuf D. Capeyron CImter ;■. Bekett . . . Clmtfield i: Vox . . . Clmttertoii v. Wetney Cliattouk r. Sliawe . . Cliavassc, Ex parte . . Chawner c Cummins Cheale v. Kenwood . . i. 198 i. 587, 588 ii. 884 ii, ()() ii, 7cio ii. 644 ii. 49 ii. ^Ii2 ii. 129, 744 . . ii. 701 i. 18,32; ii. 557, 698 Checclii u. Powell . . . .ii. 358, 941 Clieeseborougli, /n ?e . . . . ii. 8'J4 Clieeseman v. Exall i. Ol7, 624, 020, 820, 829 ; ii. 54 Cheetliam v. Ward . . ii. 102, 835 Cliemiiient r. Tliornton . . . ii. 826 Clierry i\ Ileraing . . . i. 47, 274 V. Bank of Australasia i. 121, 123 Cheslyn v. Dalby . . . . ii. 8!S3 Cliesman v. Nainby . . . . ii. 739 Chester, Bishop of, v. Freeland ii. 703 Chesterfield v. Bolton . . . i. 380 V. Jansen ii. 682 Chesterfield & Midland Silkstone Cull. Co. V. Hawkins . i. 65, 06 "i. 547 Chesterman v. Lamb V. Mann . Chesworth v. Hunt Cheval 1'. Nichols . Cheveley v. Fuller . Chew V. Holroyd . Chidell V. Galsworthy Chidley, In re . Child II. Cliamberlain u. Douglas . . Childs V. Monins Chilton V. Carrington V. Lond. & Croy. China Steamship Co., Chinery v. Viall . . Chinnery v. Evans . Chinnock v. Ely V. Sainsbury . Cliinnock's Case . Chippendale, Ex parte V. Thomlinson . V. Tliurston Chisnian v. (^ount . Chitty I.'. Selwyn . Cholmeley v. Darley Chope V. Reynolds Chorley v. Bolcott . Chowne v, Baylis . Christie v. Borelly . u. Griggs . . V. Lewis . . . Christophers !>. White Christy v. Kow . V. Tancred . Chubb V. Stretch Ry. Co.- In re 11 700 ii. 36 ii. 40 i. 434 ii. 04 ii. 958 i. 497 ii. 709 i. 207; ii. 258 G23 800 896 ii. 459, 401, 478 . ii. 869, 890 . i. 38; ii. 411 i. 663; ii. 704 . ii. 300 . ii. 41 . ii. 953 . ii. 789 . ii. 604 . ii. 147 . ii. 661 ii. 118, 153 . i. 601 ii. 595, 897 . i. 306 . i. 739 . i. 694 . i. 569 i. 721, 724 . i. 375 ii. 943, 944 Church V. Imperial Gas Co. . i. Churcliward v. Ford .... i. V. Reg ii. Churchwardens of Deptford o. Sketchley i. Churton u. Douglas . . . . ii. Citizen's Bank of Louisiana v. First National Bank of New Orleans i. City Bank, Ex parte . i. 553 ; ii. City Discount Co. v. MacLean ii. City Investment Co., In re . . ii. City of London Gas Co. v. Nicholls i. Clack V. Carlon i. Clanricarde v. Henning . . . ii. Clapham v. Langton . . . . ii. V. Moyle i. V. Shillito .... ii. 516, Clarance v. Marshall . . . . ii. Clare v. Lamb ii. V. Maynard .... . ii. Claridge v. Dalton ii. V. Mackenzie i. Clarlngbould v. Curtis . . . ii. Clark V. Bly thing. Hundred of ii 156 374 670 187 742 V. Gaskarth V. Gilbert V. Glasgow Ass. Co. V. Hooer . . V. Johnson . V. Leach . . ?'. Upton . . Clarke, Ex parte V. Ciickf. Un. I. Dickson . V. Earnshaw ti. Fuller . . V. Holmes . V. Hooper . V. Hougham I'. Hutchins 1-. Malpas . V. Noel . . V. Percival . V. Roche V. Roystone V. Sharp . . f. Sliee . . V. Spence V. Tipping . V. Watson . I'. Westrope V. Willott . Clarkson v. Musgra Clavering's Case Clay I'. Crofts . V. Harrison . V. Ray . . V. Southen . V. Willan V. Willis . . 204 651 ; ii. i. ii. 542, i. i. II. ii. 020, ii. 600, 585; i. i. 578, 446; ii. . 11. . ii. ii. ii. 598, 1. 112, 337 896 823 291 156 569 779 124 301 523 594 419 547 239 347 480 191, 196 477 576 803 891 126 279 731 318 154 778 609 277 638 885 885 777 779 817 244 662 331 237 601 449 605 599 797 382 646 551 653 497 730 1.30 758 .14 XXV 111 INDEX OF ENGLISH CASES. Clay I'. Yates . . . 1.56 1; ii. 757 Claygate v. Bachelor . . ii. 737 Clayton v. Adam . . . i. 217 V Blakev i. 355 V. Burtenshaw . ii. 644 V. Gregson . . i. ?M . , . i. 7fil V Nugent, Lord . 295, 290 Clayton's Case . . . 11. 820, 823 Cleary v. M'Andrew . i. 687, 718, 719 Cleave v. Jones . . . 11. 886, 888 Clegg !'. Kowland . . . ii, 927 Clement v. Gunhouse . . i. 51 Clements v. Todd . . , . ii. 310 V. Williams i. 106 V. Wells .... 11. 709, 902 Clerk V. Blackstock . i. 80 c. Gilbert . . i. 622 V, Laurie , i. 603 V. Wrif^ht ii 371 Gierke v. ScroE;gs . . ii. 937 Clermont v. Tasburgli ii. 413 Clifford r. Laton i. 214, 217, 221 V. Parker ii. 254 V. Watts .... ii 800 Clift V. Scliwabe ii. 204 CUmie v. Wood . . i. 396, 4.39 ; ii. 75 Clinan v. Cooke . . . i. 250 ; ii. 371 Clipshani c. Vertue . i. 701 Clive V. Beaumont . . i. 41 Clode V. Bayley . . i. 55C ; ii. 235 Close V. Phipjis . . . ii. 597 Closmadeuc v. Carrell ii. 621 Clough V. Lambert ii. 353 V. Lond. & N. West Ry. Co. ii. 776, 777 Clow V. Brngden . . i. 446 Clowes V. Clowes . . ii. 346 1'. Higginson . . IT. 413, 705 V. Huglies . . . . i. 4G4 ; ii. 12 Clubb r. Hutson . . ii. 725 Clufif V. Moore . . . . i 15 Clugas V. Peualuna . ii. 752 Clun's Case .... i 431 Clunn, Inre . . ii. 8.36 Coates V. Railton ii. 489 Coats V. Chaplain i. 815 V. Wilson i 199 Cobb V. Becke . . . ii. 603, 845 i. 412 Cobban v. Downe . . i. 607 Cobbett V. Wheeler . i. 181 Cobden v. Kendrick . ii. 599 Cochran !;. Retberg . , i. 729 Cock 11. Cross . . . ii. 936 V. lionychurch . • ii. 848 V. Richards . . . • • ii. 323 V. Taylor . . . i. 723 Cockburn, Ex parte . > ii. 303 V. Ed\vards . . . . . ii. 22 Cocker v. Bevis . . ii. 29 Cocker's Case . . . ii. 289 Cockerell v. Aucompte . . . i. ISO Cockey v. Atkinson . . . ii. 161 Cocking V. Ward . i. 255, 411 ; ii. 605 Cockle V. Lond. & S. East Ry. i. 758, 754 Cockney's Case ii. 293 Coekrane v. Fisher . . . . ii. 127 V. Green ii. 842 V. Willis i. 24 Cockrill V. Sparke ii. 884 Cockroft r. Black ii. 929 Cocks V. Masterman . . ii. 000, 785 V. Nash ii. 830 Cockshott V. Bennett . . . . ii. 730 Cockson i'. Cock ii. 909 Coe V. Clay . . . i. 357 ; ii. 505, 578 V. Duffleld i. 275 Cofiee V. Brian ii. 278 Cogent !). Gibson . . . .ii. 55.3, 609 Coggs «. Bernard i. 516, 526, 528, 556, 658, 560, 028, 755 ; ii. 62, 095 Coghil !). Freelove ii. 920 Cohen i: Ilarle ii. 250 V. S. East. Ry. . i. 775, 791, 705 Colm V. Davidson ii. 123 Colbeck V. Girdlers' Co. . . i. 383 Colbourn v. Dawson .... ii. 84 Colbourne and Strawbridge, Ex parte " . ii. 806 Colby V. Gadsden . ii. 401. 413, 427 Coldham ?•. Showier . . i. 280; ii. 84 Cole V. Cottingham . . . . ii. 324 V. Forth i. 386 V. Gibson ii. 322 V. Goodwin i. 771 V. Gower ii. 728 V. Green i. 385 V. Meek i. 702 V. Parkin ii. 619 V. Robins i. 230 u. Sims ii. 709 f. White ii. 371 Cole's Case ii. 909 Colebourne v. Colebourne . . i. 239 Colebrook v. Layton . . . . ii. 737 Coleman i\ Gibson . . . . ii. 436 V. Lambert i. 723 u. Riches . . . . 1. 96, 97, 104 V. Sayer . ii. 226 V. Sherwin i. 77 V. S. East. Ry i. 754 V. Upcot ii. 365 V. Waller ii. 731 V. Winch ii. 82 Coles V. Barrow ii. 953 t). Bristowe . . i. 670;ii. 558 V. Bulmaii ii. 471 I). Hulrae i. 297 V. Pack ii, 93 u. Strick ii, 725 !). Trecotliick ... ii. 871, 414 Collard v. S. East. Ry. Co. . . i. 821 CoUedge v. Harty . . . . ii. 123 INDEX OF ENGLISH CASES. XXIX Colledge V. Horn ii. 884 CoUen I'. Gardner . . . . i. 90, 348 V. Wright . i. 121, 123, e89, 691 ; ii. 309 Collett V. Curling . . . i. 351), 469 V. Lond. & N. West. liy. Co. i. 742, 817 ; ii. G!)(j CoUey !.'. Smith ii. 315 V. Streeton i. 44G Collier v. Jenkins ii. o'J3 V. Mason ii. 697 CoUingridge v. Roy. Exch. Assur- ance Co ii. 373 CoUings V. Haywood . . . . ii. 877 CoUingwood 1'. Berkeley . . i. 177 Collins i: Benning . . . ii 795, 878 V. Blantern ii. 322, 522, 724, 74B, 703 V. Bristol & Exeter Ry. Co. i. 766, 79B V. Brook i. 195 V. Butler ii. 233 V. Carey i. 5b9 «;. Collins i. 602 V. Crouch ii. 927 V. Evans i. 97 V. Godefroy i. 16 V. Hopwood ii. 750 V. Jackson ii. 276 V. Lamport ii. 67 u. Loehe ii. 740, 742 V. Price i. 587, 650 V. Prosser i. 79 CoUinson v. Lister ... ii. 922, 930 V. Margesson ii. 882 CoUia V. Bottliamley . i. 277 ; ii. 444 V. Selden i. 640 V. Stack ii. 884 Collyer v. WiUock . . . . ii. 888 Colman v. Duke of St. Albans ii. 20 V. East. Counties Ry. Co. i. 165 Cologan V. London Assurance Co. ii. 168 Colonial Trusts, In re . . . . ii. 310 Columbine ;'. Chichester . . ii. 574 Colvile V. Parker ii. 336 Colvill, Ex parte ii. 208 Combe v. Woolf ii. 97 Combe's Case i. 87 CommerciarSteamship Co. v. Boul- ton i. 730 Commines v. Scott .... 1. 276 Commings v. Heard . . . . ii. 859 Congleton, Mayor of, v. Pattison il. 908 Congreve v. Evetts .... ii. 66 Connoch v. Jones i. 302 Connor v. Martin ii. 942 Constable v. Cloberie .... i. 700 V. Noble ii. 160 Contract Corporation, Re . . i. 163 Conway v. Gray ii. 143 Cooch V. Goodman . . . . i. 47, 364 Cood V. Good i. 315, 816 Cook V. Deaton i. 196 Cook V. Guerra i. 360, 369, 472 ; ii. 13 V. Jones ii. 614 V. Lister . ii. 225, 242, 255, 834 V. Wright . . . . i. 30 ; ii. 251 Cook's Policy ii. 206 Cooke V. Chilcott ... ii. 711, 901 0. Clayworth ii. 413 V. Earquhar i. 85 a. Moylan i. 377 V. O.xley i. 40 V. Riddelieu ii. 614 V. Seeley i. 86 V. Stratford ii. 748 V. Tombs ii. 371 V. Tonkin i. 176 V. Wilson . . . i. 69, 111, 116 Cooker v. Child i. 66 Coombe, Ex parte . . . . ii. 39, 40 V. Greene i. 689 Cooniber v. Howard .... i. 469 Coombes v. Dibble . . . . ii. 745 Coombs V. Bristol & Exeter Ry. Co i. 815, 816 ; ii. 436 Coomdoo V. Mookerlie . . . ii. 722 Coope V. Cresswell ii. 890 V. Eyre . . . i. 81 ; ii. 270, 499 Cooper, Ex parte i. 794, 800 ; ii. 491, 494 In re ii 872 V ii. 47 I'. Bill . . . . ii. 486, 487, 492 u. Blandy i. 505 .;. Emery .... ii. 376, 383 V. Evans ii. 95 V. Jarman .... ii. 917, 930 V. Joel ... . . . ii. 104 V. Lloyd i. 220 V. Lond. Brighton & S. Coast Rv. Co i. 813 V. Lond. & S. West. Ry. Co. i. 809 V. Martin i. 23 V. Parker ii. 804 V. Phillips . . . . i. 14, 99, 638 V. Simmons i. 197 u. Smith .... i. 275; ii. 431 V. Stephenson .... i. 598 V. Taylor ii. 929 V. Turner . . . . . ii. 812 V. Webb ii. 315 V. Willomat . . . . i. 530, 623 Coore V. Callaway ii. 825 Cope, Ex parte ii. 300 I). Albinson i. 38 V. Rowlands ... ii. 753, 758 V. Thames Nav., &c. . . i. 156 Copeland v. Gubbings . . . i. 412 V. N. East. Ry. Co. i. 243 ; ii. 556, 567 Copin V. Adamson ii. 585 Copley V. Burton i. 454 Copper Miners' Co. u. Eox . . i. 149 Coppin !'. ... i. 211 ; ii. 360 !;. Walker i. 113 Coppock V. Bower ... ii. 620, 725 INDEX OF ENGLISH CASES. Corbett, Ex parte ii. 956 Corcoran v. Gurney . . . ii. 138 Cordery v. Colville . . . . ii. 2;i'J Cordwent i: Hunt ii. 83-! Core V. Wooddye .... i. 67 Core's Case . . . . i. 303 Cork V. Balcer ... i. 270 V. Lister .... . . ii. 811 V. Saunders . . . ii. 852 Cork&Bandon Ry. Co. i: Goode ii. 873 V. Paterson . . . . . ii. 289 Cork&YoughalKy.Co.,/nre ii.310,733 Cork Distillers' Co. u. Gt. Soutliern Ry. Co., Ireland i. 794 Corkell v. Gray i. 309 Corkling v. Massey .... i. U98 Corlett V. Gordon i. 068 Cornfoot V. Fowke i. 96, 97, 98, 365 ; ii. 774 Cornfortli v. Smitliard Cornill V. Hudson Cornisli v. Abington . V. Cleife V. Rowley .... u. Searell .... V. Stubbs . . . Cornwall, &c. Mining Co, nett Cort V. Ambergate, &c. ii. 469, 798, 830 Cory i Burr . , Patton .... V. Scott V. Thames Iron Works Corry v. Gt. West. Ry. . Coshay i-. Tute Coslake v. Till .... Costworth V. Betison . . Cotes V. Davis . . Coteswortli v. Spokes Cotliay V. Fennell . Cottam V. East. Co. Ry. Co, V. Partridge . . . Cottee V. Rieliardson Cottle, Ex parte .... V. Fripp Cotton , Ex parte . . . V. Bull . . V. King Cotton V. Tlmrland . . Cottrell V. Watkins . . Couch !'. Steel .... Couldery r. B.artrum . Coultheard v. Clementson County Life Ins. Co,, In re Coupland v. Maynard Courtenay v. Strong Courtney v. Taylor Cousins V. Phillips Couturier I'. Mastie Covas V. Bingham . Coventry v. Coventry V. Gladstone . . ii. 142, 140 ii. 133 ii. 239 Co. ii. 677 . i. 744 . i. 777 ii. 400 . i. 492 i. 213 431, 465 407, 11. 1. 882 874 814 381 ii. 404 . ii. 656 . i. 354 Ben- ii. 555 266 11. 572 887 i. 344 ii. 318 ii. 336 ii. 75 1.487 ii. 331 ii. 768 ii. 382 i. 638 ii. 806 ii. 105 ii. 198 i. 409 . i. 24 i. 300 i. 412 269, 667 ii. 467 ii. 333 ii. 492 Coventry's Case . Coverdale v. Grant Coverley v. Burrell Covington v. Roberts Cowan V. Milburne Coward v. Gregory Cowell, Ex parte V. Simpson Cowie V. Halsall V. Stirling . Cowles V, Gale . Cowley V. Watts Cowper V. Godmoiid V. Green . . V. Smith . . . Cox V. Bailey . . (.. Bent . . V. Bishop V. Gt. E.ast, V. Gt. West V. Hickman V. Leech . . . V. Liotard . V. Mid. Count. Ky. Co. V. Prentice . . i. 126 ; V. Rodbart . . . 0. Troy V. Walker .... WiUoughby !v. . . . ii. 288 . . . i. 728 . . . ii. 395 . . . i. 734 . . . ii. 717 i. 379, 380, 381 ... ii. 41 i. 616 ; ii. 517 ii. 620 ii. 244 ii. 400 ii. 412 ii. 876 i. 16 ii. 97 ii. 053 i. 467 i. 442 749, 801 i. 646 134, 140 503, 597 ii. 201 i. 156 594, 609 ii. 684 ii. 227 ii. 547 ii. 279 131, Coxe V. Harden . . . i. 815 ; ii. 456 Coxhead v. Mollis . . i. 200 Coxon !■• Gt. West, Ry. Co. i. 796, 818 Coysegame, Ex parte . . ii. 950 Cradock v. Piper .... i. 569 Craig V. Hopkhis ii. 420 V. Watson i. 659 Cragoe v. Jones ii. 102 Cramer v. Mott . . . . i. 486, 487 Cranch v. White ii. 265 Crane v. Batten i. 408 Cranston v. Marshall .... i. 700 Crantz v. Gill i. 196 Craufurd v. Cocks i. 142 Craven v. Ryder ... ii. 475, 487 Craven & Marshall, /« re . ii. 823 Crawford v. Toogood . . . . ii. 400 Cravvshay v. Eades . . . . ii. 493 V. Homfrey i. 615 V. Thompson ii. 536 V. Thornton i. 534 Creagh v. Blood i. 235 Credland v. Potter ii. 27 Cree v. Somerville . . i. 207 ; ii. 293 Creed v. Fisher ii. 672 Creen v. Wright i. 649 Crew V. Petit i. 184 V. Terry ii. 958 Cridland v. Lord de Mauley ii. 315, 317 Crieyke Case ii. 303 Cripps V. Davis . . . . . ii. 884 V. Hartnall i. 267 u. Reade . . . . ii. 419, 694, 599 INDEX OF ENGLISH CASES. XXXI Ciisdee v. Bolton ii. 690 Crisp V. Anderson ii. 621 _ V. Ciuircliill ii. 718 Cristoffersen v. Hansen . . . i. 731 Critcliley, -E.r parte .... ii. 724 Croukfoi-d v. Alexander . . . ii. 41.5 V. Winter . . . . i. 94; ii. 597 Croft V. Lumley . i. 360, 407 ; ii. 820 Croftoii V. Poole ii. 952 Crofts V. W.aterhouse .... i. 741 Croker v. Molyneux .... i. 600 Crook !!. Corp. of Seaford . . i. 151 Crookewit v. Fletcher . i. 607 ; ii. 855 Crooks t'. Allan i. 787 Crosby v. Wadswortli .... i. 2-54 Crosfield, Ex parte ii. 306 Cross V. Androes . . . . i. 455, 458 V. Bartlett ii. 547 V. Cheshire .... ii. 278, 587 V. Eiilin ii. 467 V. Williams i. 79 Crosse i'. Gardner ... ii. 423, 502 Crossfield v. Such ii. 938 Crosskey v. Mills .... i. 665 Crossley w. City of Glasgow Bank ii. 897 V. Ham ." ii. 225 Crotty V. Hodges ii. 252 Crouch V. Credit Foncier of Eng- land . . . . ii. 215 V. Gt. North Ry. Co. i. 806, 807 V. Gt. West. Ry. Co. i. 796, 797, 799 V. Lond. & N. West. Ry. Co. . . i. 745, 747, 765, 776 Crow V. Robinson ii. 898 V. Rogers i. 60 Crowe i\ Ballard ii. 779 V. Clay ii. 255 V. Laysaght ii. 852 Crowfoot V. Gurney . ii. 662, 840, 846 Crowliurst v. Laverack ... i. 19 Crowley v. Cohen . . ii. 118, 121, 196 V. Vitfy . . . . i. 327, 411 Croydon Hosp. r. Farley . . i. 149 Cruchley v. Clarence . . . ii. 020 Cruickshank v. Janson . . . ii. 149 V. Rose ii. 821 Cruse V. Paine ii. 559 Crutchley v. Clarence . . . ii. 217 V. Mann ii. 217 Cruttwell !•. Lye ii. 742 Cubit r. Jackson ii. 48 Cuckson V. Stones i. 650 Cudd V. Rutter ii. 573 Cudlip V. Rundal i. 3.54 Cuff V. Brown i. 6.58 u. Penn ii. 463 CuUen t;. Butler ii. 146 %/. Duke of Queeusbury . i. 179 V. Trimble ii. 539 Culling, Ex parte ii. 897 V. Tuffnell i. 394 Cullwick V. Swindell . . i. 396 ; ii. 75 Cumber w. Wane . . . i. 30; ii. 804 Cuming v. Brown ii. 495 V. Hill i. 067 Gumming v. Bedborough i. 370; ii. 592 V. Shand i. 543 Cummings v. Fletcher . . ii. 82, 33 Cumpston v. Heigh .... i. 588 Cunard v. Hyde ii. 136 Cundell v. Dawson . . ii. 471, 750 Cundy v. Lindsay . . ii. 503, 542 V. Marriott ii. 810 Cunliffe v. Harrison . . . . ii. 466 Cunningham v. City of Glasgow Bank, ... i. 207 ; ii. 298 V. Dunn i. 699, 727 V. Local Board, Wolverhamp- ton i. 183 Curlewis v. Clark ii. 860 Curling v, Austin ii. 418 V. Chalkden ii. 88 V. Flight ... . . . ii. 554 V. Robertson . . . i. 106 V. Shuttlewortli . . ii. 408 Currey v. Edensor ii. 646 Currie v. Anderson . . ii. 437, 439 V. Misa ii. 221, 248 V. The Bombay Native Ins. Co ii. 163 Curtis V. CoUingwood ... i. 60 u. Hannay .... ii. 526, 547 0. Pugh . . . . ii. 435, 468, 475 V. Rickards ii. 605 V. Wheeler i. 464 V. Williamson i. 89 Cusack V. Robinson . ii. 434, 435, 438 Cussons V. Skinner ... i. 649 Cuthbert v. Gumming i. 331, 332, 702 V. Dobbin . .... ii. 48 Cuthbertson v. Irving . i. 347 ; ii. 14 Cutler V. Close . . i. 582, 629 ; ii. 481 V. Simons ii. 418 Cutter V. Bower i. 307 V. Powell 1. 652, 659 Cutting V. Derby .... i. 427 Cutts V. Salmon ii. 779 V. Thodey . . . ii. 378, 406, 409 V. Ward ii. 761, 762 Cuxon V. Chadley ii. 842 Cynthia, The ii. 72 Czech V. The General Steam Navi- gation Co i. 710, 784 Dabbs v. Humphreys . . . . ii. 882 Da Costa v. Edmunds . . . . ii. 122 V. Firth ii. 182 V. Newnham ii. 179 V. Scandret ii. 131 Dahl V. Nelson i. 693, 699, 701, 728, 7.30 Daines v. Heath ii. 623 Dakin v. Oxley i. 720 XXXll INDEX OF ENGLISH CASES. Dakin v. Watson ii. 651 Dalby v. Hirst . . . . i. 437 V. Ind. & Lond. Life Ass. Co. ii. 198, 200, 209 Dale V. Hall i. 756 210; V. Hamilton Dalgleisli V. Hodgson . Dallman v. King Dalton V. Gib u. Mid. Ry. Co. i, V. Whitten . . Dance v. Girdler Dane v. Kirkwall . Daniel !'. Adams . ii. Bowles . . V. Gracie . . V. Met. Ry. Co. V. Sinclair . . V. Stepney . . Daniell v. Roy. Brit. Bank Daniells v. Harris . Daniels v. Davison Dann v. Spurrier . Dansey v. Richardson . i. 250 . ii. 129 . i. 576 i. 197, 199 ii. 361, 571 i. 475 . ii. 90 i. 2j5 . ii. 416 . ii. 324 . i. 467 i. 743, 7.59 ii. 592, 609 . i. 475 . ii. 295 . ii. 124 ii. 409, 416 i. 351, 401 449, 463, 528, 604, 609 Danube & Black Sea Ry. Co. v. Xenos ii. 791, 830 Darbey v. AVhitaker . . . . ii. 703 Darbishire r. Parker . . . . ii. 237 Darby v. Darby ii. 281 V. Harris i. 475 D'Arc V. Lon. cSi, N. W. Ry. . i. 789 D'Arcy v. Allen ii. 743 V. Askwith i. 387 V. Tlie Tamar, &c. Ry. Co. i. 166 Darkin v. Darkin ii. 352 Darlington .Joint Stock District Banking Co., Ex parte, In re Biclies i. 138 Darnley, Earl of, v. Lond. & Chat- ham Ry. Co ii. 400, 828 Darrell v. Tibbetts ii. 195 Dartmouth, Mayor, &c. of, v. Silly ii. 86 Dartnall v. Howard .... i. 559 Dasliwood V. Jermyn i. 14; ii. 330, 712 Daubuz V. Morshead .... i. 2.37 Davey v. Mason . . . . i. 761, 778 Davidson v. Burnand ii. 125, 138, 146 V. Case ii. 164 V. Cooper . . . . i. 51 ; ii 855 V. Gwynne i. 700 V. Stanley i. 91 u. Willasey .... . ii. 154 V. Wood i. 214, 236 Davidson's Case ii. 297 Davie v. Beardsham . . . . ii. 372 Davies, Ex parte i. 531, 633, 673 ; ii. 54 V. Davies i. 633 u. England i. 638, 642 K. Humphreys ... ii. 108, 878 V. Jenkins i. 218 V. M'Veagh i. 728 Davies v. Mannington . . . i. 195 V. Monkliouse "• 928 V. Penton ". 692 y. Stacey i. 370, 602 ^. Stainbank . . . . ii. 99, 230 V. Underwood i. 444 V. Wilkinson ii. 604 Davis, Ex parte i. 658 V. Bomford ii. 328 V. Bryan ii. 698 «. Burrell ... i. 430; ii. 791 V. Clarke ii. 229 V. Denby ii. 22 V. Dyton i. 405 K. Garrett i. 716 V. Gildart ii. 195 V. Gyde i. 473 V. Hedges . . . . . i. 581 V. Holding ii. 726 u. James ... .1. 815 V. Jones i. 335, 392 V. Mannington i. 195 V. Marshall i. 634, 637 V. Mason ii. 740 I. N. West. Ry. . . . i. 820 V. Reyner i. 206 !■. Symonds . i. 323 ; ii. 522, 704 V. Willan i. 761 V. Williams ii. 615 Davison I'. Gent . . ... i. 411 V. Wilson . . . . . i. 429 Davy V. Milford ii. 173 V. Shannon i. 273 Daw V. Terrell ii. 39 Dawes v. Peck .... i. 815 Dawson v. Chamney . . i. 455, 458 V. Collis ... ii. 467, 626 V. Cropp ... i. 4G6, 491, 500 V. Fitzgerald ii. 724 V. Lawes ii. 98 i;. Manchester, &c. Ry.. . i. 743 V. Massey . . . . ii. 779 V. Morrison i. 178 v. Remnant .... ii. 608, 609 V. Wrench i. 171 Day V. Bather i. 454, 455 I'. Einn ii. 398 V. Hemming ii. 767 V. Wells ii. 413 Dean v. Brown . . . . . ii. 330 V. Hogg i. 694 V. Hornby ii. 169 V. New hall ii. 838 Dean & Cliapter of Bristol v. Jones i. 305 Dean, &c. of Rochester v. Pierce 151 Deane v. Keate .... i. 517, 618 Dear v. Mellard i. 190 V. Verity ii. 412 Dearden v. Townsend . . . i. 811 Deare v. Soulton . . . . i. 222 Dearie v. Hale ii. 898 INDEX OF ENGLISH CASES. XXXUl Dearman r. Wyclie Debenham v. Mellon w. Ox . De Bcrkoni v. Smith . De Bernardy v. Harding Deeliarms v. Ilorwood De Comas i\ Prost . . . . . ii. 28 i. 214, 216, 210 ii. 322 i. 141 572, e51 i. 70 i. 6G3 De Cosse Brissac o. Ratlibone ii. 685, 861 De Cuadra v. Swann . . . . ii. 160 Duering v. Farrington . . . ii. 579 Deeze, Ej- parte i. 682 De Gaillor v. L'Aigle .... i. 217 De Garey v. Claggett . . . . ii. 128 De Gelder v. Savory .... i. 117 Degg V. Midland Ry. Co. . . i. 046 De Grave c^. Mayor, &c. of Mon- moutli i. 152 De Greuchy v. Wills . . . . ii. 944 D'Eguino V. Bewick . . . . ii. 128 De Hahn v. H.artley . . . . ii. 120 De Houghton v. Money . . . ii. 723 Delaney v. Fox . i. 347, 368, 367, 433 V. Stoddart ii. 156 De la Vega v. Vianna . . . i. 316 Delhasse, Ex parte i. 136 Delmer v. M'Cabe ii. 419 De Lothian v. Henderson . . ii. 127 De Mattos v. Gibson . ii. 708, 900, 901 V. North ii. 118 V. Saunders ... ii. 163, 176 De Medina v. Poison .... i. 443 De Mesnil, Baron, u. Dakin . ii. 597 Den V. Hopkinson i. 421 Denby v. Henderson . . . . ii. 7.39 V. Moore i. 370 V. NichoU i. 407 Denew u. Daverell i. 591 De NichoUs v. Saunders . i. 360, 408, 472 ; ii. 13 Denn v. Cartvvriglit .... i. 361 V. Rawlins i. 413 Dennett v. Atherton .... i. 359 Denny v. Hancock ii. 396 Denoon v. Home & Col. Ins. Co. ii. 116, 155 Dent V. Smith . . . ii. 126, 128, 137 Denton v. Gt. North. Ry. Co. . i. 750 0. Macneil ii. 774 V. Peters ii. 220 V. Richmond ii. 688 V. Rodie i. 522 Denys v. Shuckburgh . . . ii. 879 De Oleaga v. W. Cumberland Iron Co , . ii. 469 De Pass's Case ii. 300 De Porquet v. Page . . . . ii. 655 Deposit Life Ass. Co. v. Ayscough ii. 297 De Pothonier v. De Mattos . ii. 836 Deptford, Churchwardens of, v. Sketchley i. 187 VOL. III. Derby, Earl of, v. Taylor . . ii. 904 Dering v. Earl of Winchelsea . ii. 107 Derisley v. Custance . . . . ii. 923 De Roo V. Foster i. 194 De Rothschild v. Royal Mail, &c., Co i. 609, 745 De Roufigny v. Peale . . . i. 596 Derry v. Duchess of Mazarine i. 226 De Ruvigne's Case . . ii. 288, 298 Desbrowe i'. Wetlierby . . . ii. 252 De Sewhanberg v. Buchanan . ii. 518 De Silvale v. Kendall .... i. 718 Deslandes v. Gregory . . i. 69, 116 De Tustet v. Shaw . . . . ii. 273 Dettmar v. Metrop. & Provincial Bank ii. 224 Deuters v. Tewnsend . . . . ii. 226 Deux V. JefEeries ii. 837 Devaux v. ConoUy ii. 599 V. I'Anson .... ii. 154, 155 V. Salvador .... ii. 121, 137 I'. Steele ii. 119 Devaynes v. Noble ii. 820 Deverell v. Lord Bolton . ii. 382, 384, 386 Devon V. Paulett ii. 921 Dew V. Parsons ii. 597 De Wahl v. Brame .... i. 226 Dewhirst, Ex parte . . . . ii. 962 De Wolf V. Archangel Insur. Co. ii. 126, 147 u. Lindsell ii. 110 D'Eyncourt v. Gregory . . . i. 390 Uias V. Freeman ii. 894 Dibble V. Bowater i. 485 Dick V. Donald ii. 375 Dickenson i'. Dodds i. 41 V. Jardine .... ii. 141, 182 V. Naul ii. 500 Dicker v. Jackson i. 007 Dickinson v. Follett . . . . ii. 521 V. Kitchen ii. 67 V. Marrow .... ii. 440, 845 V. Valpy i. 141, 169 ; ii. 262, 271 Dickson v. Reuter's Telegraph Co. i. 122, 829 V. Swansea Vale Ry. Co. . ii. 896 V. Zizinia i. 326 Diddear v. Faucit ii. 347 Die Elbinger v. Clay i. 84 Digby V. Atkinson .... i. 444 Diggle V. Higgs .... ii. 745, 768 Dilk V. Keighley i. 194 Dillon V. Rimmer ii. 809 Dimech v. Corlett ii. 693 Dimmock i'. Hallett . . ii. 390, 391 V. Sturla ii. 94 Dingle v. Hare i. 96 ; ii. 478, 525, 548 Dinham v. Bradford . . . . ii. 282 Diplock II. Blackburn . . . i. 661 V. Hammond ii. 656 Dirks V. Richards i. 613 XXXIV INDEX OF ENGLISH CASES. Disborne v. Denabie i. 64 l)i Sora V. Pliilips i. 316 Ditcliam V. Warrall .... i. 200 Dixon, Ex parte ii. 814 V. Adams .... . . i. 16 V. Baldwin . . . . . ii. 491 V. Bovill i. 67 V. Hamond i. 125, 672 u. Harrison . . ... ii. 47 V. Hurrell . . . . i. 224 V. Muc'kleston ii. 37 V. Nuttall ii. 246 V. Reid ii. 145, 1B8 u. Sadler ii. 126 !i. SaviUe ii. 17 V. ytansfleld i- 682 V. Yates ii. 475 Dobell 1-. Hutchinson . i. 275 ; ii. 395 V. Stevens .... ii. 392, 522 Dobson V. Bolton ii- 175 V. Collis i. 272 V. Hudson i. 577, 586 V. Sotlieby . . . . ii. 199 V. Wilson .... . i. 733 Dod V. Monger i. 492 Dodd V. Acklom . . . . i. 409, 412 V. Ponsford . . . . i. 306 Dodgson V. Scott i. 174 Dodsley i). Varley . . .ii. 441, 474 Dodson V. Mackey . . . ii. 884 V. Sammell ii. 927 6. Wentworth ii. 492 Doe V. Alexander .... i. 431 V. Amey . . . i. 353, 406, 426 V. Amos ii. 653 V. Archer i. 415 V. Ball ii. 853, 947 V. Batten i. 424 V. Bayley i. 418 V. Baytup i. 434 V. Bell i. 284 V. Benson i. 421 V, Bevan ii. 946 V. Bingham ... ii. 856, 857 V. Birch i. 403 V. Bliss i. 407 V. Bluck i. 413 V. Bond i. 405 V. Bowditch . . . . i. 403, 432 V. Brown i. 352 V. Browne i. 3.53 V. Brydges i. 431 V. Bucknell ii. 16 V. Burt i. 294, 349 V. Butler i. 418 V. Byron i. 432 u. Calvert i. 421, 426 V. Carew i. 405 V. Carter . . i. 361 ; ii. 49, 946 V. Cawdor i. 403 V. Chamberlaine .... i. 855 V, Cbaplin i. 415 Doe !.'. Church , V. Clarke V. Coombs V. Cooper V. Courtney i>. Cox . V. Crick . V. Culliford V, D.avies V. Day . t. Derry . u. Dixon . V. Dobell V. Donovan (/. Dunbar V. Dyson V. Edw>ards V. Ekins . V. Elsam . V, Evans . V. Feredy V. Flynn . V. Eorster V. Frankis u, Franks u. Frowd V. Fuchau V. Fuller . V. (lalloway f. (iardhier V. Geekie V. Giles . V. Godwin r. Goldwin c. Goodier (,. Gower V. Grafton V. Green . V, Harpur V Hawkins u. Hazell . V. Hiscocks v. Howard V. Hubbard V. Huglies ( . Hulme [,. Humphreys V. Ingleby V. Jackson . V. Johnson . V. Jones . . 1'. Keeling u. Kennard . V. Kensington, V. Kightley . V. Kneller . V. Knight V. Lamb . . 1.'. Lambly . u. Laming . (.. Lea . . . V. Lewis . . . i. 415 . i. 344 . ii. 622 . i. 402 . i. 411 i. 355, 413 i. 414, 424 . i. 419 355 ;ii. 11 8, 10, 613 . i. 413 . i. 351 i. 353, 419 . i. 417 . i. 423 . i. 432 ii. 13, 650 . i. 406 . i. 404 ii. 426, 937 . ii. 614 . i. 402 i. 421 . ii. 656 . i. 431 . i. 402 . i. 431 ii. 654 . i. 349 . i. .352 j. 411, 413 . . ii. 8 . i. 404 415; ii. 8, ll ii. 10 . i. 856 i. 354, 417 . i. 351 . i. 186 . ii. 18 . i. 418 . i. 296 . i. 422 . i. 294 . i. 422 . i. 414 . i. 425 . i. 406 . i. 416 . i. 4^0 407 ; ii. f 8 405 ; ii. 9C9 i. 401 ii. 48 i. 416 i. 404 i. 50 i. 421 i. 421 i. 360, 453 ; ii. 180 . i. 417, 421 330, 638, 920 i. 855 i Lord u INDEX OF ENGLISH CASES. XXXV Doe V. Lightfoot ii. 8, 10 V. Lines i. 420 V. Lucas i. 4"23 V. M'Kaeg i. 356 V. Maisey ii. 8 J'. Manning ii. 3:34 d. Marquis of Bute ii. Guest i.309 !;. Massy ii. 871 V. Masters .... . i. 431 V. Mattliews i. 420 V. Meux i. 405, 407 V. Miles i. 41.3 V. Mills i. 434 t;. Milward i. 409 V. Mitchell 1. 434 V. Mizem i. 414 V. Morpliett i. 418 V. Morrice . . . . . i. 505 V. Morse i. 353 V. Nainby i. 413 V. Needs i. 295 V. Pasquali i. 402 i>. I'aul i. 431 V. Peck i. 405 V. Pedgriph . i. 280 ; ii. 365, 655 V. Perrin ... . . . i. 420 V. Phillips ii. 614 u. Pitcher ii. 763 V. I'ittman i. 402 V. Polgream ii. 347 V. Poole i. 411 V. Powell i. 344 V. Price i. 355 V. Pritchard . . . . ii. 937 o. Pullen i. 3-52 V. Kaffan i. 418 V. Reid ii. 908 ti. Rhodes i. 422 V. Robinson ii. 920 B. Roe i. 415, 431 V. Rowe i. 406 V. Rowlands i. 445 V. Sales i. 360 V. Samuel i. 419 V. Sayer i. 413 V. Scott i. 418 V. Skirrow i. 347 V. Smaridge i. 413 V. Smith i. 351, 352, 361,419; ii. 654, 946 V. Smyth i. 434 V. Snowdon i. 422 V. Somerton i. 424 V. Spence i. 422 V. Spiller i. 415, 424 Stanion i. 403 Stanton i. 345 Stapleton i. 420 Steel i. 425 , Stennet i. S55 , Steward .... ii. 948, 950 Stratton i. 41.3 Doe V. Suramersett .... i. 414 V. Sutton ii. 799 V. Thomas i. 356 V. Thompson i. 346 V. Tom ii. 11 V. Turner i. 356 V. Vince i. 420 V. Walters i. 415 V. Wandlass i. 431 V. Watkins i. 423 u. Watts i. 352, 404 c. Wells 1. 403 V. Wheeler i. 205 V Wiggins .... ii. 638, 653 V. Wilkinson i. 415 V. Williams . . i. 403, 411, 423 V. Wombwell i. 421 < . Wood i. 412 V- Woodman i. 423 V. Worsley i. 360 V. Wrightman ... i. 418,' 423 Doggett V. Catterras . . . . ii. 747 V. Vowell i. 22 Dolby V. lies i. 347 Dolling V. White ii. 362 Doloret v. Rothschild . . ii. 400, 573 Donian's Case ii. 289 Domett V. Beckford .... i. 723 Donald v. Suckling i. 613, 622; ii. 62 Donaldson v. Donaldson ... i. 14 V. Gillot .... i. 600 ; ii. 563 V. Haldane i. 559 Donellan v. Read i. 274 Doolan ;,•. Midland Ry. Co. . i. 791 Doorman r. Jenkins i 526,527; ii. 61 Dorchester v. Webb . . . . ii. 936 Dormay i'. Borradaile . . . ii. 204 Dormer v. Williams . . . . ii. 344 Dosseitei, The i. 506 Doubleday v. Muskett ... i. 176 Dougal V. Kemble i. 725 Doughty V. Bowman . . . . ii. 910 Douglas V. Culverwell . . . ii. 779 V. Patrick ii. 826 V. Scougall ii. 124 Dover, In re i. 68 Dover, Hastings, &o., In re. . i. 308 V. Mills i. 606 Dowie V. Sanders .... ii. 34, 37 Dowling, In re ii. 952 V. Ford ii. 888 Down V. Hatcher ii. 804 V. Pinto i. 636 Downe's Case ii. 297 Dovvnes v. Back i. 523 V. Green ii. 199 V. Jennings ii. 330 V. Richardson ii. 619 Downnian v. Jones .... i. 70 V. Williams i. 115 Downs V, Cooper i. 347 Dowse V. Cale i. 381 XXXVl INDEX OF ENGLISH CASES. Dowse V. Cox i. 208 Dowse's Case . . . . ii. .yy Doyle V. Dallas ii. ItiO V. Powell ... . ii. 14y Drauhaehi v. The Anglo-Egyptian Navigation Co i. 737 Drage v. Ibberson . . Drake v. Betkliam . . V. Mitclicll . . . Draper c. Crofts . . Drayton v. Dale . . Dresser v. Bosanqtiet . V. Norwood . . Dressier, Eu: parte . , Drew V. Bailey . . . t. Locketl; . . V. Martin Drew V. Nunn . . Drewe v. Corpe . . . Drinkwater v. Goodwin V. Lond. Ass. Co. Driscol V. Bovil . . V. Passniore . . Driver v. Burton . Dronfield Silkstone Co Drope V. Tliaire Dnie V. Tliorne . . Drury v. Defontaine y. Hooke V. Maeauley V. Macnamara Dry V. Boswc'll . . V. Davy . . . Dryden v. Frost Dublin&Wiek. Ry. Co Duckett ;•. Williams Duckworth v. Alison Duddell V. Simpson Dudgeon ik Pembroke Dudley v. Smith V. Ward . . Duero, Tlie Dulaur v. I'rofess. Life Duff V. Budd . . r. Mackenzie . Duffell V. Wilson . Dugdale v. Lovering Duhammel v. Pickermg Duiecnan v Walker Duke of Bedford, The Duke of Manchester, The Duke of Northumberland i' ton ]1. I Zb i. 137, 139 . ii. 859 . i. 375 . ii. 953 . i. 1321 8-2 ; ii. 814 ii. 956, 957 ii. 359, 935 . ii. 110 . ii. 3(jO i. 230 . ii. .393 i. 83, 112 . ii. 191 . ii. 157 ii. 130 ii. 587, 501 -e . ii. 304 i. 86 . ii. 943 . ii. 755 ii. 322, 323 . ii. 061 84, 357 ; ii. 570 I. 1 1 ; Tn: Black ii. 208 ii. 90 ii. 38 i. 199 . . ii. 206 i. 583 ; ii. 690 ii. 392, 403 123, 135, 137 . . i. 741 . . i. 440 . . i. 710 Co, . ii. 205 (70, 793, 815 ii. 174 . ii. 206 . . ii. 585 . . i. 237 . . ii. 741 . . ii. 73 . . i. 716 Erring- i. 80 i. 314 ; ii. i. Duke of Norfolk v, Worthy Duke V. Andrews . . . i. 41 ; 1. I i\ Barnett . . V. Forbes . . . Duraergue v. Rumsey Duncan y. Benson . . u. Blundell . . ii. 816 ii. 375, 419 . . ii. 316 . . i. 396 . . ii 74 i. 589, 591 DuncaTi v. Cannan . V. Findlater c. Hill }■ u. Lowndes ii V. Cafe .... i. 534 ; ii. 408 V. Topham . . . . i. 45; ii. Duncan, Fox, & Co. v. N. & S. Wales Bank .... ii. 229, Duncan & Co. u. N. & S. AVales Bank ii. Duncombe v. Brighton Club Co. ii. V. Reeve i- I.. Tickridge . . . . i. 197, Duncuft V. Albrecht . . ii. 55B, Dundas V. Dulcns .... ii. Dundonald v. Jlasterman . i. 536, Dunk r. Hunter i. Dunkley v. Dunkley . . . . ii. Dunloj) V. Higgins . i. 45; ii. 365, v. Lambert . . i. 815; ii. 455, V. Waugh ii. Dunn r. English . . . . ii. v. Sayles i. 1.-. Spurrier i. Dunne v. Ferguson .... i. Dunstan v. Burwell ... ii. Dunvegan Castle, The . ii Dupen V. Keeling . . . ii. Duppa V jMayo i. Duranty f. Hart . i. 104, 318;ii Duranty's Case . . . . ii. Durham, Earl of, ;•. Legard ii. 397 Durrant v. Ecclesiast. Comms. ii Durrell i'. Bederlcy . . i\ Evans .... Dutch !'. Warren . . Dutchman v. Tooth Duthie V. Hilton . . . Dutton V. Marsh . . . 0. Poole v. Solomonson i. 81 Duvergier v. Fellows . Dwyer v. Gurry i. Dyer !■. Green ii. V. Hargrave ii. Dyke v. Sweeting . . . . ii. Dykes v. Blake . . . ii. 369, .392, Dynen v. Leach . . . . i. 039, Dyson v. Eowcroft . . . . ii. 11. ii i. 58, i 61 ii. 471, ii. 717, 11. 332 245 688 112 790 230 111 674 492 269 573 335 694 373 336 479 470 518 780 631 299 2(10 942 . 70 596 474 . 70 296 413 593 132 281 480 . 84 719 263 , 62 476 743 523 623 517 923 395 643 171 Eaden 1'. Titchmarsh . . . i. Eaglesfield v. Londonderry ii. 774, Eagleton v. Gutteridge i. 603 ; ii. Earle v. Hopwood ... ii. 721, V. Mani;ham ii. V. Picken 1. V. Rowcroft . . . . ii. Early, Ex parte ii. r. Garrett . . . . . ii. Easley v. Crockford . . . . ii. East V. Smith ii, Kastabrook v. Scott . . . . ii, 185 783 638 722 589 506 145 423 266 236 338 INDEX OF ENGLISH CASES. XXXVll East Angl. Ry. Co. v. East. Co. Ry. Co i. 165 East. Co. Ey. Co. v. Philipson ii. 793 East of England Banking Co., In re ii. 233, 673 Easterly v. Pullen ii. 884 V. Sampson ii. 910 East India Co. v. Glover . . i. 156 V. Pullen i. 827 V. Sandys ii. 743 Eastland v. Bircliell . . . i. 225 East Lond. Un., Guards, of, v. Met. Ry. Co . . . ii. 796 East Un. Ry. Co. o. Hart . . ii. 309 Eastwood 0. Kenyon . i. 9, 22, 27, 60, 266 Eaton V. Baker .... . i. 156 V. Bell i. 181 Eaves v. Dixon ii. 520 Ebbett's Case i. 199 Ecclesiast. Comraiss. v. Merrall i. 151 Eccleston v. Clipshani . . . ii. 275 Echliff D. Baldwin . .... ii. 415 Eckliardt v. Wilson . . . . ii. 951 Eckstein v. Reynolds . . . ii. 826 Edan v. Dudfield .... ii. 437 Eden, The i. 716 0. Blake i. 324, 327 V. Parkinson ii. 128 Edgar v. Blick ii. BG.) V. Bumstead i. 669 V. Fowler ii. 767 Edgcombe v. Rodd . . . . ii. 724 Edge V. Bumford ii. 216 V. Frost i. 70 ■/. Strafford i 257 V. Worthington .... ii. 40 Edgell V. Day i. 533, 671, 672 ; ii. 407, 602 Edger v. Knapp . . . . ii. 313, 587 Edie V. East India Co. . . . i. 156 Edis V. Bury ii. 243 Edmond, The ii. 60, 71 Edmonds v. Goater . . . ii. 883 Edmondson v. Nuttall . . . i. 509 Edmunds v. Brown .... i. 147 V. Bushell i. 100 y. Downes ii. 883, 885 V. Groves ii. 748 V. Waugh ii. 869 Edward Hawkins, The . . . i. 567 Edwards, fe parte. . . . i. 675, 685 Lire ii. 334, 483, 494 V. Aberavon Ship. Insur. Co. . . . ii. 120, 723, 724 V. Baugh i. 30, 31 0. Brewer ii. 488 V. Cameron's, &c. . . . ii. 263 II. Chapman ii. 834 V. Coomb ii. 865 V. Farebrother .... i. 220 V. Footner ii. 129 Edwards v. Glyn ... ii. 824, 950 V. Hall ii. 553 V. Hancher ii. 865 u. HaviU i. 104 V. Hodding i. 126, 534 V. Hodges i. 432 V. Jevons ii. 84 i;. Kelly i. 270 I'. M'Leay ii. 423, 426 V. Ronald ii. 867 V. Scarsbrook ii. 596 V. Sherratt i. 827 u. Towels i. 221 C-. Weeks ii. 833 u. West ii. 187, 373 0. Wickwar ii. 423 V. Yeates ii. 825 Edye v. Addison ii. 333 Egan V. Guard. Kens. Un. . . i. 570 Egerton v. Earl Brownlow . . ii. 720 V. Matthews i. 276 Egg I'. Barnett ii. 810 Egraont, Earl of, v. Smith . . ii. 372 Elirensperger v. Anderson i. 690 ; ii. 600, 603 Eichholz V. Bannister. . ii. 502, 599 E. I. Co. V. Vincent .... i. 400 Ekins V. Tresham ... ii. 517, 519 Elect. Tel. Co., In re i. 523 ; ii. 293, 300 u. Bunn ■ . . ii. 293 Eley V. Positive Government Se- curity Co i. 280 Elford V. Teed ii. 231 Elkington v. Holland .... i. 597 Elgie V. Webster i. 13B ; ii. 278 Ellen V. Topp . ... i. 657 Elliot V. Clayton .... ii. 952 V. Edwards . ii. 43, 382, 404 V. Merryman 1. 203 V. Wilson ii. 156 Elliott V. Bishop . . i. 391, 394, 395 I,. Davis .... i. 73, 146, 149 u. Johnson . . i. 442 ; ii. 905 I'. Kemp .... . ii. 934 V. Pybus ii. 449 i V. Richardson . . . ii. 727 0. Royal Ex. Ass. Co. . . ii. 724 V. Thomas ii. 443 V. Turner i. 292 Ellis V. Emanuel ii. 91 V. Griffiths ii. 29 V. Hamlin . . . i. 575, 579, 586 v. Hunt ii. 491 u. Mason ii. 661 a. McHenry ii. 867 t: Reg ii. 50 V. Schmoeck i. 170 V. Taylor i. 494 V. Thompson ii. 462 V. Turner i. 696, 710 u. Wilmot ii. Ill Ellison V. Blgnold i. 300 XXXVlll INDEX OF ENGLISH CASES. Ellison V. Collingridge Elmslie r. Corrie . Elmore v. Kingscote V. Stone . Elphick V. Barnes . Elsarn v. Denny Elsee V. Gatward . Eltliam V. Kingsman Elton V. Larkins Elves r. Crofts . Elvy V. Norwood . Elwes V. Maw . . Ely, Dean of, v. Cash Emancipation, The Emanuel v. Dane . Eniblin v. Dartnell Emden v. Carte Emery i\ Day V. Emery V. Richards . V. Wase . . Emly V. Lye 11 11. ii. 216 ii. 864 430 4:-i9 532 ii. 241 . l:!, 556 i. 5Sri ii. i:3ii ii. 742 . 32, 871 3!)1, 395 ii. 868 ii. 71 ii. rar, u. . 947, li. i. 92, 522 ; 2-10 962 878 224 533 416 261 11. Emma Silver Mining Co. v. Grant ii. 298, 862, 803 Emmanuel, A'r /inrfe . . . 11.950 Emmeiis v. Elderton, i. 572, 579, 631, 632, 633, 650, r,51, 659, Emmerson «. lleelis i. 281 ; ii Emmerson's .Case ... 11. 057 Emmerton v. Matthews . ii. 507 Emmett c. Norton . . . 1 ij. Tottenham . .^ Empress Engineering Co., In re Empson f. Soden .... Enderby v. Gilpin . ... Energ}', The ... . . England u. Curling . . ii V. Davidson . . <;. Downs . . V. Marsden . . . English V Blundell . . . Darley 582, 062 368 783 012 222 222 i. 93 1. 437 ii. 746 1. 716 272, 700 i. 16, 19 ii. 3.30 ii. 590 i. 75, 78 ii. 230 English and Irish Church and Uni- versity Ass. Co., In re Rolt i, 244 1. 160, 620, I ii. i. 326, English Channel Co Enthoven ?\ Hoyle Entwisle, In re . a. Ellis . . . Enys V. Donnithorn Era Ins. Co., In re . Erichsen v. Barkworth Ernest v. Nicliolls . Erskine v. Adeane . Escot V. Milward . Esdaile v. Oxenham V. Sowerby . . V. Steplienson Esparto Trading Co., In re ii. 288, 295, 302 Esposito V. Bowden . . . ii. 142 Essell V. Hayward . . . . ii. 279 Essex v. DanieU ii. 407 134 162 57 2.-,7 ii. 173 . 1. «0 ii. 289 i. 728 1. 131 365, 389 1. 83 1. 686 11. 240 ii. 394 Este V. Smyth . . Ethrington v. Parrot . Europa, The European Bank, In re V. Fox . ■ . European, &c., Co. r. R Co. . i. 533, 626, 826 Evans v. Bioknell I. Bignold i). Birch . . r, Brembridge i>. Carrington V. Cramlington I.. Davis . . . (,. Drunimond . I'. Edmonds V. Edwards . . I. Mutton 1. Judkins c;. Kynier I'. Mann V. Mathias . . V. Nichol u. Roberts t. Roe V. Simon . r. Wright . Evans' Case . Evelyn v. (.'hichester V. Raddish . V. Templar . Evorard v. Watson Everett v. Collins . 0. Desborough I'. Lond. Ass. Co. I'. Robertson . . Evertli V, Smith Ewart V. Graham . V. Latta . . . Ewers v. Hutton Exall !'. Partridge . , Exeter Carrier's Case Eyies V. Ellis . . Eyre v. Bartrop (. Hanson . . <•. M'Donell . V. Waller Eyres v. Coward Eyston v. Simmonds V. Studd . . . M Eabian v. Plant Fabian's Case . . Factor !>. Philpot . Falrclough v. Pavia Fairlie v. Christie . V. Fenton . . Fairman v. Oakford Falrtitle v. Gilbert Faith !i. Richmond Faithful, In re . . 138, 354, . . 1. 404; 11. i. 214, 347 215 :. 72 553 817 ,, &c. 11. 67, ii. 37, . ii. . 11. . ii. ii. i. 347, i. 324, ii. ii. 110, . ii. 11. 11. ii. 174; ii. ii. ii. 705 200 653 102 717 111 , 888 .808 ,354 ,773 . 707 826 224 9-52 505 815 260 637 882 484 293 197 444 334 236 817 . 94 191 882 167 551 864 353 589 800 805 97 29 258 250 943 414 288 , i. 14 . i. 431 . ii. 42 , ii. 217 . ii. 855 111 ; ii. 840 i. 634, 649 . . i. 346 . . ii. 262 . i. 684, 686 INDEX OF ENGLISH CASES. XXXIX Faithful V. Ewen . i. 686 Falcke v. Gray . . 11 481, 698 FA\k, Ex parte .... . ii. 495 Falkner v. Ritcliie . . . . ii. 168 Fallowes v. Taylor . . . i. 46 Falmouth, Earl of, v. Roberts ii.254 V. Thomas .... . i. 258, 260 Fancourt v. Thome . . ii 655, 657 Fane v. Fane .... . ii. 772 V. Spencer .... . ii. 385 Fannin v. Anderson . . . ii. 874 Farebrother v. Ansley i. 688 ; ii. 588 II. Simmons . . . i. 282 Farhall v. Farhall . 1 207 208 Farina v. Home . . ii. 43!) Farley, Ex parte ii. 40, 42 V. Briant ii. 924 Farmeloe v. Bain i. 338 Farmer v. Rogers , i. 408 b. Russell . 11. 000, 768 Farn v. Ward . . ii. 673 Farneham v. Atkins . . i. 195 Farnsvvorth v. Garrard . . 1. 591,592 Farnworth v. Hyde . . ii. 163, 167 V. Packwood . . . i. 457 Farquhar v. Farley . . . ii. 405 V. Southey . . . ii. 619 Farrall v. Hilditch . . . . i. 300 Farrance v. Elkington . i. 428 Farrant v. Barnes . . i 610, 640, 749 V. Lovel i. 400 ; ii. 20 V. Olmius . . . ii. 688 Farrar v. Deflnno . . . i. 144 V, Hutchinson . . . i. 338 Farrer v. Niglitingal . u. 393, 419 Farrow v. Wilson . . 1. 654; ii. 861 Farwell v. Bost. & C. Ry. Co. i. 644 Faulder v. Silk . . . i. 235 Faulkner v. Bolton ii. 21 Faviell v. Gaskoin . . . i. 437 Fawcet v. Lowther . . ii. 17 Favvcett v. Cash . . . i. 634 Fawcus V. Sarsfield . . ii. 123 Fawkes «. Lamb . . . . 1. 111, 333 Fazakerly v. M'Knight . i. 297 Fear v. Castle .... ii. 945 Fearn v. Cochrane . . ii. 807 V. Filica i. 91 V. Lewis .... . ii. 883 Featherston v. Hutchinson ii 717, 765 Feise v. Parkinson . . . ii. 184 V. Wray . ii. 488 Feistel v. King's College 11 728, 734 Feize v. Thompson . ii. 671 Fell 0. Goslin .... . 1.80 V. Knight .... i. 454 V. Whittaker . . . . I 499, 501 Fells D. Read .... 11 481,706 Feltham n. Cartwright . . ii. 551 V. England .... . 1 639, 644 V. Terry . . . ii. 597 Felthouse v. Bindle y . i. 38 Fenn, Ex parte ii. 301 I'. Bittleston . i. 513, 5.30; ii. 51 V. Harrison i. 91, 92, 96, 97 ; ii. 241 Fennell v. Ridler ii. 755 Fenuer i,'. Duplock .... i. 505 Penning v. Lord Granville . . ii. 282 Fenton V. Brown ii. 396 V. Dub. St. V. Co. . . . i. 696 c. Emblers ... i. 273; ii. 875 V. HoUoway i. 2^0 ( . Logan . . . . . i. 482 V. Pearson . . . . . ii. 744 Fentum r. Pocock . . ' . . ii. 227 Ferguson v. i. .384 V. Spencer ii. 867 V. Wilson ii. 286 Fergusson t'. Norman . . ii. 76 > Feronia, The i. 086 Ferret v. Hill . . . i. 441 ; ii. 771 Ferris v. Bond . . . . . ii. 243 Ferry v. Williams i. 587 Fesenmayer v. Adcock . . ii. 605 Fessard v. Mugnier ii. 795, 836 Fetter v. Beal ii. 672 Few V. Perkins . . . . i. 405, 407 Fewings v. Tisdal ... i. 651 Ffooks V. Lond. & S. West. Ry. Co ii. 307 Field V. Lelean i. 332 ; ii. 402, 404, 560 V. Megaw . . . . ii. 66, 897 V. Mitchell .... i. 489 I. Newport, &c. Ry. Co. . ii. 826 )'. Sowle . . . . . i. 219 Fielden v. Slater ii. 902 Fielden Thomas, The . . . i. 5B6 Fielder v. Hanger ii. .358 !•. Marsliall .... ii. 229, 243 t'. Starkin ii. 545 Figlia Maggiore, The i. 106, 737 ; ii. 496 Filiieul !■'. Armstrong . . i. 649 Filliter v. Phippard . . . . ii. 197 Finch V. Brooks . . . . ii. 825 r. Brown ii. 24 V. Underwood . . . . ii. 698 Findon v. M'Laren .... i. 482 V. Parker ii. 721 Finlay v. Brist. & Ex. Ry. Co. i. 151, 376 Finley v. Jowle i. 6.59 Finucane v. Small . . . . i. 609 Firbank c. Bell ii. 662 Firth V. Purvis i. 491 Fischel >•. Scott ii. 4.58 Fish V. Hutchinson .... i. 267 V. Kelly i. 594 u. Kenipton i. 82 V. Richardson .... i. 206 Fisher v. Algar i. 489, 501 V. ApoUinaris ii. 725 V. Fellows ii. 591 !:. Liverpool Marine Ins. Co. ii. 120 V. Miller i. 63 xl INDEX OF ENGLISH CASES. ITisher v. Mowbray . . . . i 193 !'. Samuda .... ii. 461, 545 V. Smitli i. 727 V. Val de Travers . . . ii. 681 Fishmongers Co. u, Robertson i. 150 Fishvvick I'. Millies . . . . ii. OGU Fisk !■. Masterman ... ii. Ib-'j Kitch V. Jones .... ii. 224, 25o t. Sutton ... . i. 14 Fitton Co. Accidental Death Ins. . ii. 212 Fitzgerald v. Dressier V. Fitzgerald V. Trant . . . Fitzherbert v. Mather i Fitz-Hugli V. Dennington i. 270; ii. 81 ii. .35o , . ii. 8S8 130, 133, 515 . . ii. 794 i. 583 ; Fitzniaurice t). Bay ley i. 92, 93, 277, 281 V. Waugh . . . . i. 66 Fivaz !'. Nichols ii. 716 Flanagan v. Gt. West, Ry Co. ii. 311 Flannagan f. Bisliop Wearmoutli i. 222 Fleet !>. Murton . i. 117, :;32 ; ii. 4:J3 V. Perrins ... i. 211 ; ii. 358 Fleming v. Buchanan . . . ii. '.i24 !'. Gooding i. 347, 348 V. Man. Shef. & Lin. Ry. i. 6'J2, 742 Flemj'iig V. Hector ... i. 179 Fletcher i>. Alexander V. Bowsher . . V. Braddick V. Dyche . • V. Gillespie . . (,'. Harcot v. Inglis . . . V. Marshall . . i. V. Sondes, Lord 2K Tayleur . . Flight V. Bolland . V. Booth V. Maclean . V. Reed . . Flindt r. Scott i>. W.tters Flinn v. Headlam Flint V. Brandon r. Fleniyng . . Florence Land Co., In re 663 i. 737 ii. 540 i. 606 ii. mo . i. 586 . ii. 717 . i. 711 ii. 560, 602 . . . ii. 736 . . ii. 078 i. 195, ii. 413 ii. 369, 390, 395 . ii. 245 i. 27 ; ii. 749 ii. 744 . . i. 237 ii. 130 . ii. 697, 700 . . . ii. 155 ii. 310 Flory V. Denny ii. 51 Flower v. Bolingbroke . . . i. 594 V. BuUer i. 218 V. Hartopp ii. .S78 Floyd V. Mangle i. 594 Fluck V. Tolleraache .... i. 196 Flud V. Rumcey . . Flureau r. Thornliill . Foley V. Addenbrooke V. Hill .... i. 5.39; ii. 853 u. The United Fire Assur. Co. . . . Foley, Lady, v. Fletcher Follett V. Hoppe ii. 935 ii. 411 i. 75 ii. 154 ii. 8a8 ii. 595, 598 I'ollit V. Koetzow ii. 718 Foord V. Noll ii. 826 Foot V. Baker ii. 748 Forbes v. Aspinall ii. 154 I'. Cochrane i. 315 V. Jackson ii. 37, 110 v, Marsliall ii. 263 Forbes & Judd's Case . . . ii. 293 I'orbes's Case ii. 288 Ford, i?.r parte ii. 952 V. Beech ii. 835, 838 V. Cotesworth . . i. 699, 727 v. Fothergill . ... i. 199 u. Olden ii. 18 u. Tiley ii. 791 I'. Yates i. 325 Ford & Hill, Inre . . . . ii. 383 Ford's Case ii. 937 Fordhani v. Brighton Ry. Co. i. 754 Fordley's Case ii. 790 Fores r. Johnes ... . ii. 719 Forest v. Man. Slief. & Lin. Ry. Co. ii. 307 Forman v. Wright . Forquet v. Moore . Forrester v. Pigou . Forrester's Ca&e Forster r. Christie . V. Macreth . . u. Taylor . . Forsyth v. Bristowe Fort V. Lee . . . Fortescue v. Hannah Forth ('. Simpson . V. Stanton . . Forward v. Pittard Foster v. Allanson . V. Bank o£ England V. Bates . . . V. Blnckstone . V. Blakelock c. Cockerell u. Colby . . V. Dawber . . V. Esse.x Bank . V. Franipton . V. Green . . . V. Jolly . V. Ley . . . V. Mackinnon . V. Oxford, &c. Ry V. Parker . . V. Patterson r. Smith . . . V. Stewart . . v. Wilner 1'. Wilson Foster & Lister, In re Fothergill v. Rolland w. Walton . . Foulkes V. Met. Ry. V. Sellway . . Fountain i'. Smith . . . ii. 251 . . i. 409 ii. 130 . . i. 195 . . ii. 144 ii. 259, 260 i. 81 868, 881, 885 . . ii. 132 . . ii. 701 . . i. 615 ii. 842, 899 i. 755, 793 . . ii. 276 . . ii. 573 . . i. 204 . . ii. 36 . . i. 672 ii. 36, 898 i. 725 834, 848, 886 . . i. 629 . . ii. 492 . . ii. 594 i. 324, 338 . . li. 589 225, 230, 776 . . . ii. 310 . . ii. 240 . . ii. 874 ii. 526, 531 ii. 576, 583 . . ii. 157 . . ii. 958 . . ii. 334 . . ii. 708 . . i. 699 i. 692, 742, 797 . . ii. 327 . . . i. 209 Co, INDEX OF ENGLISH CASES. xli Fountaine v. Carmarthen Ry. . i. 522 Fowell V. Tranler i. 401 Fowkes V. Manch., &,c. Ins. A. ii. 201 V. Joyce i. 482 Fowie !'. Freeman i. 276 Fowler v. Foster ii. 330 V. Knoop ii. 496 Fowler, In re, o. Monmouthshire Uy. Co ii. 759 Fowles v. Gt Western Ry. Co. i. 796 Fox V. liishop of Chester . . ii. 736 ,>. Clifton ... i. 141; ii. 271 V. Crane ii. 417 V. Frith ii. 274 V. Oakley i. 356 V. Purssell ii. 709 V. Scard ii. 739 Foxcraft «. Wood i. 619 Foxwist V. Tremaine .... i. 201 Fragano «. Long . . i. 815;ii. 455 Frampton v. Coulson . . . . ii. 795 Francis v. Cockerell i. 739, 752 ; ii. 581 I). Grover ii. 870 V. Hawkesley ii. 883 V. Wyatt i. 482 Frank v. jidwards ii. 86 V. Mainwaring . . , . ii. 417 Frankland v. Cole i. 696 V. Nicholson ii. 345 Franklin «. Hosier . . . . i. 588, 687 V. Neate . . . . i, 624 ; ii. 57, 62 Franklyn !>. Lamond i. 117, 118; ii.369, 401 V. Miller ii. 793 Franks, Ex parte i. 226 Fraser v. Bunn ii. 655 u. PenJlebury ii. 697 V. The Tel. Constr. Co. . 1. 698 Fray v. Voules i. 596 Frazer v. Hill ii. 63 V. Jordan ii. 97, 231 V. Marsh i. 105 Freak v. Cranefeldt . . . . ii. 875 Free v. Hawkins i. 324 Freedom, The i. 737 Freeland M. Gloyer ii. 132 Freeman v. Baker ii. 513 V. Birch i. 625, 816 V. Cooke i. 337 >.. E. I. Co i. 104 V. Edwards 1. 484 V. Jefferies ii. 603 V. Pope ii. 334 V. Rosher i. 501 V. Stacy ii. 872 V. Taylor i. 702 Freestone v. Butcher .... i. 217 Freeth v. Burr ii. 831 Freme v. Wright ii. 376 French v. Baron ii. 23 V. Campbell ii. 792 V. French ii. 385 French v. Gerher i. 730 V. Macale ii. 703 V. Newgas i. 698 V. Patton ii. 857 V. PhilMps i. 490, 504 V. Styring .... ii. 271, 275 Frend v. Buckley ... ii. 376, 384 V. Dennett i. 183 Frescobaldi v. Kinaston . . . ii. 931 Freshfield's Trust, Jii re . . ii. 898 Friar v. Grey i. 402 Friedlander v. Lon. Ass. Co. . ii. 190 Friend v. Harrison ii. 717 Friswell v. King i. 684 Frith V. Forbes .... ii. 256, 257 Fromont v. Coupland . . . . ii. 277 Fronlin v. Small i. 87 Frost V. Knight i. 651; ii. 325, 791, 876 u. Oliver i. 106 Fry V. Chartered Mercantile Bank of India i. 731 !,-. Malcolm ii. 727 Fullalove v. Parker . . , . ii. 769 Fuller V. Abraham . . . . ii. 368 V. Smith ii. 600, 786 u. Wilson . . . . i. 97 ; ii. 426 FuUwood's Case ii. 921 Furber, Ex parte ii. 674 Furguson v. Wilson . . . . ii. 280 I'urley v. Bates . . . ii. 451, 452, 458 1-. Wood i. 421 Furness v. Catherham Ry. . . ii. 309 c. Meek .... . i. 53 Furnis v. Leicester . . ii. 423, 500 Furnivall «. Coombes . . . i. 127, 298 V. Grove i. 409 Furtado v. Rodgers . . ii. 142, 743 Fusilier, The i. 566 Fydell V Clark ii. 241 Fyfe's Case ii. 301 Gabarrov v. Kreeft . ii. 448, 489, 496 Gabay v. Lloyd . i. 334, 712 ; ii. 136 Gaber v. Diver ii. 408 Gabriel Miles's Case . . ii. 358, 941 Gaby v. Driver i. 115 Gadd V. Houghton i. 114 Gainsford v. Carroll . . . . ii. 479 Gale u. Burnell ii. 62 V. Capern ii. 884 V. Leckie ii. 276 II. Lindo ii. 337 V. Reed ii. 739 Gallagher v. Piper i. 644 Gallin v. L. & N. W. Ry. Co. . i. 753 Galsworthy v. Strutt . . . . ii. 689 Galvanized Iron Co. v. Westoby ii. 271 Galway v. Matthew . . . . ii. 260 Gambles v. Ocean Marine Insur- ance Co ii. 115 Games, Ex parte ii. 837 xlii INDEX OF ENGLISH CASES. Gammon v. Beverley Gandell v. Pontigny Gandy v. Jubber Garden v. Bruce Gardener v. Salvador Gardiner v. Cbilds . V. Davis . V. Gray . . . V. Griffith ly. Hougliton . !'. Williamson . Gardner r. Cazenove V, Grout . . . V. Lou. Chat. & Dov. Ry ii. 181 i. 6.50 i. 35.3 ii. 16G ii. 499 i. 112 ii. 4B0 ii. 19 ii. 713 i. 466 ii. 68 ii. 443 ii. 309, 310 ii. 883, 884 ii. 252, 857 . ii. 96 . ii. 113 . ii. 405 . ii. 734 . i. 207 . i. 390 . i. 207 i. 550 i. 770, 796 ii. 851 . ii. 129 i. 60, 85 V. M'Malion . . V. Waisli . . V. Welsli Gardom, Kjc parte V. Lee .... Garfortli v. Fearon Garland, Ex parte . Garman v. Chapman Garner r. Moore . . Garnett v. M'Kewan v. WiUan Garrard v. Woolner Garrels v. Kensington . Garrett v. Handley Garside v. Trent Navigation Co. i. 792 Garth v. Earnshavv . . . . ii. 3.53 Garton v. Brist. & Ex. Ry. Co. 1. 746, 765, 786, 787, 789, 805, 806 V. Gt. W. Ry. Co. . . . i. 809 Garwood V. Ede . . . . ii. 316 Gascoyne v. Edwards . . ii. 869 Gaskell v. Chambers . . ii. 286, 311 V. King ii. 763 Gaskin v. Balls i. 389 Gasliglit & Coke v. Turner . . i. 442 ; ii. 728 Gaston v. Frankum .... i. 218 Gaters v. Madeley . . i. 211 ; ii. 361 Gath V. Lees ii. 461, 790 Gattorno v. Adams . . ii. 620 Gatty y. Fry ii, 249, 662 Gaunt V. Taylor ii. 929 Gauntlett v. King i. 501 Gaussen v. Morton .... i. 663 Gay, Ex parte . . . . ii. 293 V. Lander ii. 246 Gayford v. NichoUs .... i. 528 Geach v. Ingall ii. 203 Geary v. Physic i. 280 Geddes v. Pennington . . . ii. 534 Gee, In re i. 68 V. Lane. & York. Ry. Co. . ii. 678 V. Metropolitan Ry. Co. . i. 753, 759 V. Pack ii. 90, 111 Geeckie D. Monk .... i. 411 Geere v. Mare . . . ii. 598, 730, 731 Geery v. Reason i. -302 Gell V. Burgess ii. 804 V. Vermedum ii. 407 Gelly >: Clerk i. 461 General Exchange Bank v. Hor- ner ii- 320 General Finance Co. u. Liberator Soc i.336 General South American Co., In re ii. 238 General South American Co , Ex paife ii. 256 General Steam Co. v. Rolt . . ii. 96 Genessee, The . . . . . i. 566 Genges v. Genges i. 684 Genning v. Lake i. 349 George v. Milbanke . . . ii. 3.36 V. Skivington . . . i. 691 V. Surrey ... . ii. 227 Geralopulo v. Wieler . . . . ii. 238 Gerard v. Lewis . . . i. 303 Gerisli v. Chartier . . . i. 269 German v. Chapman ii. 709, 711, 712 German Date Co., In re . . . ii. 290 Gernon v. Roy. E.x. Ass. Co. . ii. 162 Gerrard v. Boden . . . . ii. 914 Gibb V. Mather ii. 232 Gibbes, Ex parte . . . . ii. 496 Gibbon V Budd . . . i. 570; ii. 757 V. Mendez . . . i. 722 V. Paynton . . . i. 612, 758, 760 Gibbons v. N. E. Metropolitan Asy- lum Dist. . . i. 38 V. Prewd i. 34 Gibbs v. Daniel ... i. 671 ; ii. 779 V. Fremont . i. 315, 317 ; ii. 673 V. Gould ii. 879, 880 V. Grey . . . . i. 104, 707 c: Harding . . . ii. 354, 701, 721 u. Southam . . . . . ii. 795 V. Tunaley . . . . . ii. 672 Gibhn i;. McMuUen . i. 526, 627, 629, 599 Gibson V. Bradford . . . . ii. 156 I. Carruthers . . ii. 488, 947, 948, 949, 955 V. Clarke ii. 418 V. Dickie ii. 321, 718 w. Doey i. 407 V. East India Co i. 166 U.Holland. . i. 278 ; ii. 430, 892 c. Ireson i, 479 . Jay i. 596 Godfrey v. Harben 1. 218 Godin V. Lond. Ass. Co. . . . ii. 195 Godolphin v. Tudor . . . . ii. 734 Godsall c. Boldero ... ii. 200, 209 Godson V. Smith ii. 859 Godts V. Rose ii. 459 Godwin V. Francis . . . . i. 279, 689 Goggerly v. Cutlibert . . . ii. 225 Golden v. Manning .... i. 793 Gold Co., In re ii. 290 Goldicutt V. Townsend . ii. 334, 835 Golding V. Davis & Co. . . . ii. 495 Goldney v. Lording . . ii. 865 Goldschmidt v. Wiiitmore . . ii. 145 Gompertz v. Bartlett ... ii. 784 V. Kensit ii. 345 Gooch's Case ii. 334 Good, Ex parte ... . . ii. 835 V. Clieesenian ii. 852 Goodall !'. Lowndes ... i. 125 V. Polliill ii. 235 V. Skelton . . . . . ii. 474 Goode V. Harrison i. 144 u. Job . . . . . ii. 869 Goodman v. Boycot . . . i. 606, 625 V. Cliase i. 269 V. Griffiths . . i. 276 ; ii. 430 u. Harvey ii. 266 V. Pocock i. 651, 652 V. Sayer .... . . ii. 593 Goodright v. Cordwent . . . i. 424 V. Gregory . . . i. 51 V. Richardson . . . . i. 351, 401 V. Strapham i. 50 Goodson V. Forbes . . . . ii. 615 Goodtitle V. Morgan . . . ii. 35, 419 V. Morse i. 346 V. Woodward i. 415 Goodwin V. Coates . . . . ii. 809 o. Robarts ii. 248 V. Willoughby .... i. 14 Goodyear v. Simpson ii. 276, 654 Goom ).'. Aflalo ii. 482 Gordillo v. Weguelin ... ii. 673 Gordon v. Ellis i. 129 V. Gt. West. Ry. Co. . i. 789, 790 o. Howden . . ii. 63 u. Morley ii. 134 V. Rae ii. 91 V. Rimmington . . . . ii. 141 V. Sea, &c. Ins. Soc. i. 171 ; ii. 300 V. Strange . . . . ii. 812 Gore V. Gibson i. 230 V. Lloyd i. 344 Gorely, Ex parte . . . . ii. 197 Goring v. Edmonds ... ii. 98 V. Warner i. 361 Gorrison v. Perrin ii. 458 Gorton V. Falkner i. 482 Gosbell V. Archer . i. 279; ii. 405, 411 Gosling V. Birme ii. 440 V. Higgins i. 707 Goss V. Nugent, Lord . i. 327 ; ii. 403, 828 V. Withers ii. 168 xliv lUDEX OF ENGLISH CASES. Gott V. Gandy i. 379 Gouger v. Jolly i- 7C1 Gough V. Findon . . . i- 23, 653 Gould V. Barnes !■ 73 V. Combs ".-.^OiJ V. Tancred ii. 23 Goutlnvaite v. Duckworth . . i. 81 Governmeut Security Co., In re ii. 299 Gover's Case ii- 298 Govier v. Hancock i- 220 Govvan V. Forster . . . . ii. 887 Govver D. Capper ..''^^ Gower'a Case .... • '!■ '"^^ Grace v. Morgan ii. 518 Graeme v. Wrougliton Grafton v. Armitage . Grafty v. Hurapage . Graham, Ex parte . u. Ackroyd . . . V. AUsop . . . V. Barras . . . V. Birk., &c. Ry. Co V. Fretwell . u. Hope . . . V. Londonderry V. Mulcaster V. Musson u. Ohver . . V. Tate . . V. Whichelo Grainger v. Ainsley Grammar v. Nixon Granger v. Dacre V. George V. Worms Grant, Ex parte , V. Austen V. Ellis . V. Fletcher V. Hunt . V. Maddox V. Munt . V. Norway V. Paxton V. Vaughan Gratitudine, The . Gratland v. Freeman Graveley v. Barnard Graves v. Key . V. Legg . . . Gray, Re ... . V. Bompus V. Briscoe . . V. Carr . V. Cox . . . V. Fowler . V. Gutteridge i u. Haig . . . V. Raper . . . V. Stuart . . . Grazebrook, Ex parte Gt. Australian Gold Co. ii. 7:54 . . ii. 450 . . ii. 701 i, 39; ii. 204 i. 6G7 i. 370 ii. 128 ii. 307 . . i. 281 . i. 144 . ii. 3B'J . . ii. 951 i. 276, 281 . . ii. 394 . ii. 589 i. 411 . i. 653 i. 96 ii. 469 ii. 879 ii. 398 i. 670 i. 63 . ii. 432 40 ; ii. 227 . . i. 332 ii. 516 i. 104, 704 . . ii. 122 243, 265, 811 i. 708; ii. 73 i. 94 . . ii. 739 i. 3.38; ii. 813 i. 333, 697 . . i. 659 . . i. 425 . . ii. 425 i. 731 . . ii. 611 . . ii. 411 117, 534; ii. 407 . i. 665 . i. 190 . ii. 332 . ii. 744 ii. 299, 775 Gt. Britain Assur. Co., Inre ii. 210, 211 Gt. Eastern, The . . • ■ .!• 1^3 Greathead v. Bromley . . . ii. 858 Gt. Ind. Pen. Ry. Co. v. Saun- ders ii. 173 Gt. Luxembourg Ry. Co. v. Mag- nay ii-286 Gt. North. Ry. Co. v. Harrison ii. 791 V. Hawcroft . . . . i. 751 V. Kennedy "• 789 V. Man. Sheff., &c. Ry. Co. ii. 831 u. Shepherd . . i. 750, 773, 774 u. Swaffield . ... i._794 V. Witham i- 32 Great Pacific, The . . . ii. 72 Gt. West., &c. u. Crouch . . i. 799 V. Blake i- 819 V. Goodman i. 766 r. Kedmayne . . i. 824; ii. 678 V. Rimell i. 780 V. Kushout ii. 308 V. Smith i. 412 V. Sutton . . i. 806, 807 ; ii. 596 Gt. West., &c. of Canada u. Faw- cett i. 743, 813 Greaves v. Ashlin , . . . ii. 483 V. Hepke .... ii. 445, 473 u. Legg ... . . . ii. 787 V. Tofleld ii. 46 Green ;;. Bartlett .... i. 680 V. Baverstock ii. 366 V. Beesley ii. 268 V. Brown ii. 140 V. Cresswell i. 267 0. Bales i. 445 V. Elmslie ii. 142 V. Farmer i. 619, 682 V. Greenbank i. 194 u. Haythorne ii. 487 u. Kopke i. 116 V. Mules i. 680 V. New River Co. ... 1. 647 V. Nixon i. 163 V. Saddington . . . i. 258, 335 V. Sevin ii. 400 V. Smith ii. 373 V. St. Kath. Dock Co. . . i. 487 V. Wright i. 634 V. Wynn .... ii. 101, 835 V. Young . . . . . ii. 157 Greenaway V. Adams i. 360; ii. 706 !•. Hart i. 347 Greene v. West Cheshire Ry. Co. ii. 700 Greening, Ex parte . . . . ii. 949 Greenough v. M'Clelland . ii. 83, 99, 230 Greenslade v. Dower .... i. 136 Greenward i>. Hurd .... i. 125 Greer v. Poole . . i. 105, 693 ; ii. 74 Gregg V. Coates i. 362 Gregory v. East I. Co. . . . ii. 566 V. Mighell i. 343 INDEX OF ENGLISH CASES. xlv Gregory v. Wilson .... i. 408 V. W. Mid. liy. Co. . . i. 787, 789 Gregory Stokes v. Pitminster 1. 633 Gregsoii v. Ruck ii. 432 Grell V. Levy ... i. 319 ; ii. 723 Gresliam v. Postiim . . . . ii. 636 Gresham Life Ass. Soc, Re, ex parte Penny ii. 566 Gresley v. Mousley . . . . ii. 779 Gresty v. Gibson i. 06 Greville v. Atkins ii. 734 Grey V. Sraitli ii. 668 Grice v. Kenriok i. 113 V. Richardson ii. 453, 483, 488, 491 Griffenlioofe v. Daubuz i. 370; ii. 592 Griffin V. Wetherby i. 63 Griffitlis n. Dudley, Earl of i. 646 ; ii. 721 0. Gidlow .... i. 639, 644 V. Hodges .... i. 410, 450 V. Jenkins i. 258 V. Jones ii. 398 V. Owen ii. 849 V. Perry ii. 480, 487 V. Pope ii. 810 V. Puleston i. 436 V. Tombs i. 435 V. Young . . i. 258 ; ii. 602, 605 Grill V. The Gen. Iron Screw Col. Co i. 712; ii. 146 Grimes v. Harrison . i. 191 ; ii. 287 Grimman v. Legge .... i. 409 Grimoldby v. Wells . . . . ii. 468 Grimslon v. Innkeeper . . . i. 461 Grimwood v. Moss .... i. 407 Grindell v. Godmond .... i. 223 Griseworth &, Smitli's Case . ii. 303 Grissell v. Bristowe . i. 109 ; ii. 558 u. Robinson . . i. 204 ; ii. 590 Grissell's Case ii. 295 Grizewood v. Blane . . . . ii. 746 Gronin v. Mendliani . . . . ii. 476 Grote V. Chester & Holyliead Ry. Co. . . i. 743, 752, 813 ; ii. 581 Grove, fc parte ii. 863 V. Nevil i. 194 Groves v. Buck i. 262 V. Dubois i. 666 Grugeon v. Gerrard . . . ii. 28, 37 Grymes v. Boweren .... i. 392 Guard. Lich. Un v. Greene ii. 103, 807 Guard. East Lond. Un. v. Met. Ry. Co ii. 796 Gudgen v. Bessett i. 53 Guepratte v. Young .... i. 315 Guest V. Homf'ray ii. 401 Guidon v. Robson .... i. 141 Gulliford v. Du Cardonell . . ii. 734 Gulliver v. Cosens .... i. 500 Gumm V. Tyrie i. 723 Gunmakers Co. t/. Fell . . . ii. 737 Gunn V. Roberta i. 103 Gunn's Case i. 39 Gunnis v. Erhart i. 324 Gunter v. Halsey ... ii. 371, 372 Gurr V. Cutlibert i. 614 V. Scudds ii. 646 Gurney v. Belirend . . . . ii. 495 V. Rawlii^s i. 171 V. Womersley . . ii. 241, 600, 785 Gurrin v. Kopera i. 66 Gustard's Case ii. 569 Guthing V. Lynn i. i!92 Gutteridge v. Mumyard . . . i. 380 Guyard v. Sutton i. 209 G. W. Ins. Co. V. Cunliffe . . i. 662 Gwillim V. Daniell ii. 524 Gwinnett v. Phillips .... i. 504 Gwynne v. Davy ii- 833 V. Mainstone i. 362 Gylbert v. Tletcher .... i. 194 Hackwood v. Lyall .... i. 106 Haddesdon Gas Co. v, Hazelwood i. 33 Haddon v. Ayers i. 75 Hadkinson v. Robinson . . . ii. 169 Hadley v. Baxendale i. 823 ; ii. 675, 678 V. Green ii. 860 Had wen v. Mendizabel . . . ii. 809 Hafod Lead Co., In re . . . ii. 558 Hagedorn c. Laing . . . . ii. 464 V. Oliverson ... ii. 120, 196 II. Whitmore ... ii. 140, 174 Hahn v. Corbett ii. 142 Haigh V. Brooks . . . i. 18 ; ii. 620 V. Guard. North Brierly Un. i. 154 V. Kaye i. 256, 282 Haines v. Welch ... i. 438, 468 Haldane v. Johnsou .... i. 359 Hale, Ex parte ii. 957 V. Boustead ii. 863 V. Rawson .... ii. 447, 459 Hales V. Freeman ii. 589 V. Lond. & N. West. Ey. Co. i. 747 ; ii. 679, 790 Haley v. Hammersley . . ii. 74, 75 Halford v. Cameron's, &c. . . ii. 263 V. Kymer ii. 199 Halhead v. Young ii. 148 Halifax ;•. Lyle ii. 229 Halkett t>. Mercht. Trad., &c. i. 171 Hall, Ex parte ... i. 256 ; ii. 897 V. Asliurst i. 70 V. Bainbridge i. 50 V. Betty . . . . ii. 375, 384, 580 V. Burrows ii. 282 V. Cazenove i. 701 V. Chandless ... ii. 856, 857 V. Conder . ii. 505, 553, 785, 798 V. Dyson ii. 726 V. Featherstone . . . . ii. 223 V. Fuller i. 548 V. Janson i. 734 u. Jenkinson ii. 418 xlvi INDEX OF ENGLISH CASES. Hall V. Jolmson i. G39 V. Laver ii. 386 V. Mayor, &c. of Swansea i. 152 u. North-East. Ky. Co. . 1. 75a c\ Norfolk Estuary Co. . ii. 505 V. Odber ii. 8110 V. Potter ii. 322 V. Robinson ii. 109 u. Smith . . i. 80, 118; ii. 20U u. Swansea ii. 596 V. Taylor . . . i. 180, 182, 245 V. Warren . . i. 83, 235; ii. 414 V. Wright . . . ii. 325, 328, 801 Hall's Case ii. 293, 304 Hallen v. Runder .... i. 263 Hallett n. Dowdal . . . . i. 145, 171 V. Wigram i. 734 Hallett's Estate, In re ... i. 070 Hallewell v. Morrell . . . . ii. 408 Halliday v. Holgate . . i. 613 ; ii. 62 V. Ward ii. 885 Hallmark's Case ii. 288 Halsey v. Grant ii. 393 Halstead v. Skelton . . . . ii. 232 Halton, In re ii. 865 Hambidge v. De la Crouce i. 138 Hambro' v, Hull & Lond. Fire Ins. Co i. 161 Hamburg, The . . . . i. 707 ; ii. 70 Hauler's Dev., Ex parte . . . ii. 306 Hamerton v. Stead .... i. 375 Hamilton v. Grainger . *. i. 230 V. Hector .... ii. 719, 703 V. Incledon i. 200 V. Mendez .... . ii. 169 V. Mohun . . . . ii. 322 V. Spottiswoode . . . . ii. 662 c. Terry i. 206 V. Watson ii. 103 Hamilton Windsor Iron Works, In re ii. 310 Hamlet v. Richardson . . . ii. 5!)3 Hamlin v. Gt. North. . . . i. 751 Hammersley c. De Bell . . . i. 14 Hammon v. Roll i. 23 Hammond, Ex parte ... ii. 863 u. Anderson ... . ii. 485 V. Barclay ... . . i. 682 V. Dufrene ii. 240 V. Smith ii. 877 Hampden v. Walsh . . ii. 600, 768 Hampshire v. Wickens . . i. 309, 361 Hanby v. Cassin . . ii. 603 Hancke v. Hooper . . . . i. 591, 601 Hancock v. Hodgson .... i. 127 V. Lablache i. 218 Hand v. Hall i. 283 Handford ;;. Palmer . i. 54, 516, 518 Hands «. Slaney . . . . i. 198, 644 Hanington v. Du Chatel . . ii. 728 Hankins v. Walrond .... i. 438 Hanley v. Cassin i. 675 ust Hanlon, In re . . Hannah v. Hodgeson Hannuic v. Goldner Hansard v. Hardy . V. Robinson Hanson v. Armitage V. Derby . . V. Meyer V. Roberdeau . Harbert's Case . . Harcourt r. Karasbottom V. Wyman . . i Harding r. Cooper V. Davies . . . c. Edgecombe I. Freeman . . t. Harding u. Preece . . V. Webster . . . V. Wilson Hardman c. Bellhouse u. Booth . . V. Willcock . Harden v. Ilesketh Hardwick, Lord, v. A V. Vernon V. Wright . . Hardy v. Bern . . 0. Martin V. Reeves . . V. Veasey . . V. Waters . u. Woftdrooffe . Hare v. Barstow V. Hentv i-.Lond."&N.West, V. Travis . . Harford v. Gardiner V. Purrier Hargrave v. Smee . Hargreaves v. Parsons Hargrove, Ex parte Harland v. Binks . Harley v. King . . Harlock v. Ashbury Harman v. Anderson V. Harman . . V. Johnson . V. Kingston u. Reeve u. Richards . V. Vaux . . Harmer )>. Bell . V. Cornelius Harms v. Parsons Harnett i-. Gielding 0. Maitland . Harnor v. Groves Harper v. Williams Harpham v. Shacklock Harratt v. Wise . . . 894 073 9.1 r-^ . ii. 835 . ii. 779 . ii. 469 . ii. 21 ii. 255 . ii. 441 . ii. 20 ii. 450, 485 i. 117, 118 . ii. 587 . ii. 415 426 ; ii. 348 . ii. 725 . . ii. 825 ii. 890 ii. 423, 502 ii. 925 . . ii. 957 . . ii. 289 . . i. 349 . . ii. 848 ii. i. 12-5, i. SiO 1 i. 452 ii. 779 . . ii. 103 ii. 684 ii. 683 . ii. 20 . i. 599 . i. 201 . ii. 2:;2 ii. 187 . . ii. 249 . Co. ii. 307, 570, 722 . ii. 157 i 15 . . ii. 373 ii. 93 . i. 266, 268 . . ii. 120 . . ii. 851 ii. 903, 904 868, 870, 872 . ii. 440 . ii. 928 . i. 537 . ii. 117 . i. 263 . ii. 336 . ii. 176 ii. 69, 72 i. 590, 648 . ii. 740 . ii. 702 . i. 384 i. 324, 325 i. 70 . ii. 35 . ii. 142 INDEX OF ENGLISH CASES. xlvii Harrliy v. Wall .... ii. 732, 853 Harries, In re ii. 810 V. Edmonds i. 738 Harririfrtoii v. Cliurchward . . ii. 2(38 V. Ilaggart ii. 408 V. Long ii. 722 V, Price ii. 41 V. Ramsay .... . i. 433 V. Vict. Grav. Dock Co. . i. 17 Harris, Ex parte .... ii. 569 V. Amery i. 158 a. Birch .... ii. 2, 62!), 657 V. Carter i, 103, 654 V. (Jockermoutli, &c. Ry. Co. i. 809 V. Costar i. 741 V. Farwell ... . i. 143 V. Fawoett ii. 105 V. Gt. West. Ky. Co. i. 528 V. Huntbach i. 269 V. Jones ... . . i. 379 V. Lee . . .... 1. 214 c. Morris .... i. 220, 222 V. Nickerson i. 33 c. Packwood i. 76o V. Pepperell ii. 783 i: Quine ii. 875, 892 V. Reynolds ii. 848 V. Rickett . . . i. 328, 335 o. Shipway i. 473 u. Truman ... . i. G7() V. Watkins . . . . ii. 928 V. Watson i. 14, 10 Harris's Case ... . ii. 22, 45 Harrison, Ex parte . . . . ii. 11, 77 V. Barnby ... i. 472; ii. ',113 V. Bank of Australia . . i. 734 u. Cage . i. 270 u. Cotgreave . . . i. 194 ; ii. 252 (/. Gardner . . . . ii. 707 V. Hart ... . . . ii. 75 V. Jackson . . . i. 86, 146 V. Lond. & Br. Ry. Co. i. 748, 769, 786, 789 o. Lord North . . . i. 368 u. Lucke . . . . ii. 4B9 u. Ruscoe . . . . . ii. 236 D. Seymour ii. 96 V. Southampton . . . . ii. 343 V. Sykes i. 47 II. Tennant ii. 279 V. Timmins i. 168 y. Wright ii. 685 Harrow School v. Alderton i. 399, 400 Harrower v. Hutchinson . ii. 132, 161 Hart V. Alexander .... i. 144 V. Baxendale 1. 826 V. Biggs i. 228 V. Bush ii. 437, 441 V. East XJn. Ry. Co. . . . • ii. 309 u. Frontino, &c. Co. . . . ii. 571 „. Hart ii. 621 u. Leach i. 501 Hart V. Mills . . u. Nash . . V. Preiidergast v. Stephens . V. Swaine V. Windsor . Hart's Case . . Harter v. Colman Hartford v. Jones Hartland v. Jukes Hartley v. Buggin o. Case . . V. Cummings V. Hudson . V. Moxham . V. Ponsonby V. Rice . . Hartley's Case . Ilartness v. Thompson Hartop V. Hoare V. Juckes . Hartshorne v. Watson Hartz V. Schrader . Harvey, Ex parte . Harvey v. Bridges V. Grabhara V. Johnston . u. Kay . . . u. Pocock . . V. Towers . . Harvvood v. Law . Haseler v. Le Moyne Haselgrove v. House Haselington r. Gill Haseltine v. Siggers Haslehain v. Young Hassell v. Long . . V. Mercht. Trad. Hasser v. Wallis Hastelow v. Jackson Hastie V. Couturier Hastings, Marquis of, Hastings, In re . . Hatch V. Hale . . V. Hatch . . V. Searles . . Hatcher, Ex parte . Hatehwell v. Cooke Hatstall V. Griffith . Hatton, Ex parte . V. Gray . . . Haughton v. The Empi Co Haveloek v. Geddes V. Hancill . . Haven Gold Co., In ? Havens v. Middleton Havergill v. Hare Hawes v. Forster V. Smith . . V. Watson . Hawke v. Corri . 11. ii. 442, 467 . ii. 887 . ii. 883 58, 891, 942 ii. 390 365, 366 ii. 568 ii. 32 i. 566 ii. 878 ii. 157 ii. 236 .24, 632; ii. 739 . i. 371 . . i. 487 i. 16 ii. 321, 323 ii. 268 . i. 201 i. 616; 11.53 . . i. 120 . 1. 406 . ii. 279 . . ii. 40 . i. 429, 430 i. 260; ii. 403 ii. 324, 326 . . ii. 554 . i. 476, 509 . . ii. 223 . . i. 168 . . i. 501 . . ii. 835 ii. 830, 335 . . ii. 447 . . ii. 113 . ii. 87, 92 . . i. 171 . . ii. 596 ii. 600, 768 . . ii. 545 V. Thorley ii. 826 ii. 928 1.494 ii. 779 ii. 217 ii. 295 i. 709 i. 74 ii. 300 i. 276 Mar. Ins. . . ii. 147 305, 701, 722 . . ii. 145 . . ii. 290 . . ii. 788 . . ii. 48 . . ii. 433 . . i. 206 1.672; 11.487 . . ii. 346 &c are J xlviii INDEX OF ENGLISH CASES. Hawken v. Bourne Havvkes v. Sinitli Hawkins, Edward, The Hawkins v, Cardy V. Coulthurst V. Uarwood V. Holmes . tj. Maltby . V. Rutt . . V. Walrond . V. Warre Hawley v. Beverley . Hawtayne v. Bourne . Hawthorn v. Hammond Hay V. Ayling . . V. Willougliby Hay's Case . Haycock Policy, In re Haycroft v. Creasy Haydon v. Bell . . . V. Miller . V. Williams . . Hayes v. South- West. Ry Hayling v. Okey Hayne v. Cummings i. 145, 170 757 567 219 '213 am 280 561 805 Co, c. Maltby . . Haynes v. Hare Hayselden v. Staff. Hayton v. Irvin Hayward !•. Bennett V. Scougall . . V. Williams Haywood v. Bibby V. Brunswick Bldg. So, V. Cope . V. Rodgers Hazard v. Tread well Head v. Tattersall Head's Case . . Heald v. Hay V. Kenworthy Healey !•. Storey Heams i'. Bance Heane v. Rogers Heap !'. Barton . V. Dobson . Heard v. Stamford Hearn v. Lond. & S W. Ry. . II, . ii, i. 494, 497 . ii. 653 . ii. 591 i. 91, 169 . i. 454 . ii. 748 . ii. 801 . i. 07G i. 895, 897 . ii. 515 . ii. 386 . ii. 943 883, 884 i. 796, 818 . i. 436 1. 297, 404, 406 . i. 336 . i. 324 . i. 591 i. 331, 332 ii. 799 458 943 633 ii. 709, 10, 901, 915 ii. 704 ii. 132 i. 90 ii. 532 ii. 569 ii. 735 ii. 818 ii. 258 ii. 32 i. 337 396, 440 . i. 136 . ii. 943 Co. i. 761, Hearne v. Tenant Heath v. Chilton V. Pugh . . Heathcote v. Crookshanka Heather v. Webb . . . Heathorn v. Darling . . Heatley v. Thomas .... i. 218 Heaton, Ex parte i. 637 Beaton Steel & Iron Co., Simp- son's Case ii. 568 II. 779 ii. 400 i. 208 ii. 871 ii. 851 ii. 864 70 u. Heaven v. Pender i. 591, 640; ii. 670, 695 Hebb's Case i. 39 Hebden v. Rutter i. 34 i: West ii. 200 Hedburg v. Pearson . . . . ii. 174 Hedley «. Bainbridge . ... i. 138 Heffleld v. Meadows .... ii. 93 Hegan i\ Johnson i. 467 Hegarty r. Milne ii. 651 Heilbut V. Hickson . . ii. 446, 466 Heinekey v. Earle . . . . ii. 493 Heinrich v. Sutton .... i. 684 Heinrich, The i. 684 Helbert's Case ii. 305 Helen, The ii. 744 Helier v, Casebert ii. 926 Hellawell v. Eastwood . . . i. 475 Hellier v. Sillcox i. 374 Hellyer v. Grace i. 209 Helme v. Smith ii. 278 Helps V. Clayton i. 199 ; ii. 339, 590 V. Winterbottom . . . . ii. 876 Helsby i'. Mears i. 132 Helyear v. Hawke .... i. 96, 98 Hemming v. Trenery . . . . ii. 854 £x parte ii. 864 Hemmingway, fc/jap-fe . . . ii. 865 Hemp I'. Garland . . . . ii. 876 Henderson t. Austral. St. Nav. Co . . . i. V. Eason . . . . . i. V. Gilchrist ii. V. Lond. & N. W. Ey. Co. V. Mears .... V. N. E. Ey. Co. . V. Royal Brit. Bank V. Stevenson . . V. Squire . . . Henfree v. Bromley . Henkel c. Pape . . . Henley v. Soper . . Henman c. Pickinson Hennessy, Ex parte Henniker i'. Wigg . . Henry v. Root . . . Henson r. Blackwell . v. Coope .... Hentig v. Stainforth . Henwood v. Oliver Hepworth v. Heslop . Heraud v. Leaf Herbert v. Champion Salis. & Yeovil Ry. Co. ii Heref. & Mertli. Tid. "Ry In re Herefordshire Banking Co Herlakenden's Case . . Hermann v. Hodges . . Hern v. Nichols .... Heme Bay Co., In re . . 154 378 928 761, 779 . i. 368 . i. 823 ii. 295 i. 528, 772 i. 425, 446 . ii. 854 i. 45, 101 . ii. 276 . ii. 254 . ii. 303 . ii. 823 . i. 201 . ii. 199 . i. 326 . ii. 184 . ii. 826 . i. 203 i. li. 145 ,181 Co., Re 318 675 387 . ii. 700 i. 94, 96 . ii. 310 INDEX OF ENGLISH CASES. xlix Heme v. Benbow . . . . i. 884, 388 Hervey v. Smith ii. 709 Heseltine v, Siggers . . , . ii. 6B0 Heselton v. Allnut ii. 157 Hesketli v. Blanulmrd . . ii. 26a, 278 V. Gowing i. 197 Hesse v. Stevenson . . . . ii. 952 Heudebowielc v. Langton . . i. 188 Heugli u. Lend. & N. West. Ry. Co i. 794, 798, 799 Heward v. Wlieatley . . . . ii. 927 Hewison v. Guthrie .... i. 616 V. Negus ii. 334, 336 Hewitt V. Ishara i. 388 V. Loosemore ii. 33 Heyman v. Neale ii. 432 Heys V. Tindall i. 672 Heywood v. Picl^ering . . . ii. 249 Heywortli o. Hutchinson ii. 526, 527 V. Knight . . i. 38; ii. 433, 854 Hibbert v. Carter ii. 495 V. Martin ii. 120 V. Sliee ii. 467 Hibblewliite u. M'Morine i. 48; ii. 562 746 Hibbs V. Eoss i. 106 Hick!;. Phillips ii. 393 Hickes v. Cooke ii. 18 Hickey v. Birt ii. 836 Hickie v. Rodocanachi . ii. 164, 165 Hickie & Co.'s Case . , . . ii. 256 Hickley v. Hickley . . . . ii. 779 Hickman v. Cambrian, &c. Ins. Co. i. 171 u. Haynes i. 327 V. Machin ii. 14 Hickmott's Case ii. 836 Hicks V. Beaufort, Duke of . ii. 288 V. Gregory i. 20 Hide, In re ii. 957 Hiern v. Mill ii. 38 Higgins V. Bretherton . . . i. 802 U.Hopkins. . i. 71, 565; ii. 583 V. Livingstone i. 181 V. Pitt ii. 765 V. Senior . . . . i. 85, 88, 117 Higginson v. Clowes . i 324 ; ii. 369 V. Simpson ii. 745 Higgon V. Mortimer .... i. 386 Higgons V. Burton ii. 642 Higgs V. Northern Assam Co. . ii. 896 V. Scott ii. 593 Higham v. Cookes i. 350 Highmore v. Primrose . . . ii. 604 Hildyard v. South Sea Co. . . ii. 571 Hill V. Balls ii. 538 V. Bovle ii. 723 V. Buckley ii. 397 V. Curtis ii. 932 V. Featherstonehaugh . . i. 592 V. Grange i. 431 V. Gray ii. 537 V. Halford ii. 244 Hill V. Heap ii. 289 V, Jolinson ii. 655 V. Kitching i. 678 V. Lane ii. 317, 705 V. Lewis ii. 217 V. Perrott ii. 584 V. Ramm ii. 656 V. Royds i. 63, 127 V. Saunders ii. 357 V. Smith ii. 946 V. Tucker i. 74 .-, Walker ii. 936 )/. Wilson ii. 176 Hill's Case i. 191 Hillary v. Morris ii. 952 Hills V. CroU ii. 413 V. Lond. Ass. Co. . . . ii. 173 V. Mitson ii. 726 V. Street ii. 597 V. Sughrue . . i. 368, 703; ii. 800 Hilton v. Eckersley . . ii. 720, 738 V. Woods ii. 722 Hinde v. Gray ii. 737 V. Liddell ii. 479 V. Whitehouse i. 281 ; ii. 443, 458 Hindlaugh v. Blakey . . . . ii. 227 Hindley v. Westmeath i. 224; ii, 353 Hindmarsh, In re ii. 883 Hindustan, Bank of, In re . . ii. 568 Hindustan, China & Japan, Bank of, Ex parte Kintrea . . . . ii. 568 Hine v. AUeley ii. 232 Hingeston v. Kelly .... i. 565 Kingston v. Wendt .... i. 687 Hinton V. Dibbin i. 778 Hipwell V. Knight ii. 400 Hirschfield v. Lond., Brighton, & S. C. Ry. . . . ii. 775, 776 V. Smith . . . . ii. 238, 252, 264 Hirscliman v. Budd . . . . ii. 252 Hirst V. Horn i. 427 V. Smith ii. 934 Hiscox V. Greenwood .... i. 617 Hitchcock V. Coker . . i. 31 ; ii. 740 V. Giddings ii. 422 V. Humfrey ii. 92 Hitchings v. Thompson . . i. 434, 505 Hitchman v. Stewart . . . . ii. 108 V. Walton i. 395, 439 Hoad V. Grace ii. 83, 84 Hoadly v. Maclaine . ii. 430, 452 Hoare v. Dawes ii. 499 V. Graliam . . . . . i. 325 V. Parker ii. 54 u. Rennie .... ii. 794, 830 Hobart v. Butler i. 670 Hobbs V. Hull ii. 355 V. Henning ii. 129 V. Lond. & S. West. Ry. Co. i. 751, 823 Hobson V. Bass .... ii. Ill, 112 V. Cowley ii. 839 INDEX OF ENGLISH CASES. Hobson V. Mellond . ... ii. 43 Hoby V. Bruilt . . . . i. 504 V. Roebuck i- 258 Hoohster y. De la Tour . i. 651, 669; ii. 464, 791, 800, 830, 876 Hoddesdon Gas Co. r. Hiizlewood i. 276 Hodges V. lA. Liclifield ii. 405, 411 Hodgkinson v. Cooper . . . ii. 386 V. Crowe . ... i. oOf) V. Kelly ii. 568 Hodgman r. The West Mid. Ky. Co. Hodgson 1-. Anderson V. Coppard . . V. FuUarton u. Johnson . . i.LeBret . . V. Loy . V. Malcolm . . t. Kichardson o. Temple . . V. Williamson Hodson V. Coppard V. Observ. Life Ass. So. V. Tea Co. . V. TerriU . . Hoffman r. Marshall Hogarth v. Latham i Hogg I'. Skeen . Hoggins V. Gordon . Holcombe v. Hewson Holcroft V. Barber . V, Dickenson . Holden i'. Liv. Gas Co Hiilden's Case Holder, In re . V. Dickeson V. Soulby V. Taylor Holderness v. CoUinson . V. Sliackells Hold gate v. Kay V. Slight . . Holding !'. Elliott V. Pigott . . Holdsworth Bank . . i. 783 i. 63, 269 ii. 010 j. 600, 700 i. 256, 250 ii. 434 . ii. 488 ii. 139 ii. 130 ii. 753 ii. 874 ii. 707 ii. 199 ii. 310 ii. 600 . . ii. 176 139; ii. 217, 261 i. 138; ii. 223 1. 570 i. 711; 302; n. 11. 743 634 322 . . i. 398 . . . ii. 569 . . . ii. 9.50 ... i. 34 i. 448, 449, 463 ii. 578 i. 619 ii. 474 i. 358 ii. 7.59 i. 328 i. 435 City of Glasgow ii. 29.5, 774, 77" Holford V. Hatch . . . ii. 904 V. Pritcliard . ii. 552 Holl V. Griffin ii. 440 Holland «. Duffin ii. 020 V, Hodgson i. 396, 476; ii. 75 V. Holland i. 301 r. Lea ii. 86 o. Russell i. 126; ii. 132, 596, 603, 811 Holies «. Carr i. 801 Holliday v. Atkinson .... i. 15 Hollier v. Eyre ii. 99 Hollis V. Clarige i. 086 HoUister v. Nowlen . . . i. 765, 771 HoUoway i;. Millard . . . . ii. 335 Holman v. Johnson 0. Loynes Holmar v. Stevens Holme, Ex parte V. Brunskill r. Guppy . y. Hammond Holmes v. Bell . V. Buckley . V. Clarke . 1'. Iliggins . u. Hoskins V. Jaques V. Kerrison . V. Kidd . a. Mackrell . u. Mitchell ('. Sixsmith . . !■. Tutton V. Walsh [■. Williamson . V. Wood . . . Holroyd v. Marshall V. Wyatt Hoist r. Pownall Holt, Ex parte . . V. Ely . f. Everall . . V. Ward . . . Holyday r. Morgan Homer, Ex parte ('. Ashford Homershani &c. Co. . ii. 144, 710, 752 . . i. 67) . . ii. 827 . . ii. 304 i. 425 ; ii. 96 . . ii. 799 . . i. 134 . . ii. 857 . . ii. 903 . i. 638, 643 . . ii. 312 . . ii. 437 . . ii. 245 ii. 795, 878 ii. 225 ii. 882. 887 i. 277; ii. 82 ; ii. 522, 620 . . ii. 816 ii. 947 ii. 277, 587 i. 209 .72, 481 ii. 6.5, n. 3(j9 490 . . . ii. 293 ... i. 86 . . . ii. 200 . . i. 35, 195 ii. 519, 520, 521 ii. 924 . ii. 739, 741 Wolverhampton ... i. 157 Honeyman r. Jlarryatt ... i. 38 Honk 7-. Muller ii. 467, 794, 830 Honnor v. Morton . . . ii. 950 Hooke V. Piper . . . . . i. 164 Hoole V. Gt. West. Ry. Co. . . ii. 290 Hoopei", Ex parte ... ii. 39, 42 lure i. 223, 603 V. Clarke . . ii. 906, 909 ( . Keay . . . . ii. 820 V. Ramsbottom ii. 41, 54 ;;. Smart, . ... ii. 412 V. Stephens . . . . ii. 887 V. Treffry ... ii. 591, 599 o. Williams . . . ii. 245 Hopcroft V. Keys .... i. 464 Hope, Ex parte . . . ii. 866 <■. Hope 1.315, .319; ii. 713, 766 V. International Society ii. 304, 723 Hnpgood !'. Parkins .... i. 598 Hopkins v. Grazebrook . . ii. 411 u. Prescott .... ii. 734, 704 o. Richardson . . . . ii. 583 c: Tanqueray ... ii. 506, 524 V. Ware . . ii. 250, 810, 817 liopkinson v. Foster . . . ii. 897 V. Lee i. 76 V. Rolt . . . . ii. 35, 36 Hopper V. Burness . . . . i. 719 INDEX OF ENGLISH- CASES. Hopson V. Trevor . . . . . ii. 703 Hopwood V. Whaley . . . . ii. 926 liore !-■. Milner .... . . ii. 470 V. Wliltmore . . . . . ii. 127 Horford v. Wilson . . . . . i. 680 Horlor i'. Carpenter . . . . ii. 92 Horn V. Anglo-Austra. Co . . . ii. 204 Hornby y. Cardwell . . . . ii. 681 V. Close . . . . ii. 738 V. Lacj' .... . i. 88 !;. Matcham . . . . . ii. 28 Horncastle v. Farran . . . i. 616 Home 0. Mid. Ry. Co. . . i. 822, 823 h\ Rouquette . . . ii. 238, 264 V. Wingfield . . . . . ii. 377 Horner v. Graves . . . . ii. 740 Horneyer ;;. Lusliington . ii. 152, 183 Hornidge v. Wilson . . ii. 925 Horrocks v. Rigby . . . ii. 412 Horsefall v. Davy . . . . i. 486 V, Mather . . . i. 398 Horsey v. Graham . . . . i. 259, .329 Horsfall v. Handley . . i. 126 a. Key ii. 628, 651 V. Thomas . ii. 537 Horslbrd v, Webster . . . i. 473, 479 Horsley v. Bell .... . i. 175, 182 I'. Rush i. 86, 695 Hort's Case ... . . ii. 289 Horton v. M'Murtry . . . . i. 647 V. Riley .... . . ii. 590 V. Sayer .... ii. 723, 724 Hoskins v. Pickersgill . . ii. 121 Hotson V, Browne . . . i. 326, 328 Hough V. Manganos . . . . i. 114 V. May .... . ii. 812 Houghton V. Matthews . . . i. 682 Houlditch V. Milne . . . . i. 270 Houldsworth v. City of Glasgow Bank . . ii. 299 Houlistone v. Smythe . . i. 223 Housego V. Cowne . . . . . ii. 236 Household Fire Insurance Co. v. i. 45 House V, Lord Petre . . . . ii. 934 Hovil V. Pack . . . . . i. 93 How V. Greek .... . i. 68, 364 . . i. 375 . . i. 727 Howard, Ex parte . . . ii. 822 V. Brownhill . . . . . ii. 606 V. Chapman . . . . . ii. 814 V. Danbury . . . . . i. 538 u. Hooker .... . . ii. 330 V, Lovegrove . . . ii. 548, 680 V. Shaw .... . . i. 377 V. Shepherd . . . . . i. 704 V. Sheward . . . i. 96 ; ii. 525 . . i. 606 . . i. 726 V. Wemsley . . . . . i. 416 V. Wood . . ii. 596 Howard v. Woodward ii. 706, 707, 739 Howard's, Sir Robert, Case . ii. 205 Howcutt V. Bonser . . . . ii. 881 Howden, Lord, v. Simpson . ii. 721 Howe V. Soarrott i, 464 V. Synge ii. 763 Howel V. George ii. 412 Howell i\ Batt i. 63 V. Brodie ii. 271 u. Coupland ... ii. 453, 802 V. Jackson i. 454 0. Maine i. 209 V. Young . . . . i. 597 ; ii. 879 Howes V. Ball . . . . i. 484 ; ii. 65 Howills V. Landore Steel Co. . i. 645 Howlett V. Haswell .... i. 194 Howley v. Kniglit ii. 921 Hf)wse V. Webster ii. 926 Howson V. Hancock . . . . ii. 768 Hubbard v. Glover . . . . ii. 1.30 V. Jackson ii. 218 Hubbersty v. The Manch., Shef., & Line. Rail. Co. . . . ii. 066 !'. Ward i. 104, 704 Huber y. Steiner . . i. 316;ii. 891 Hubert «. Moreau i. 280 u. Treherne i. 279 V. Turner i. 281 Hucks i'. Thornton . . . . ii. 145 Huildlestone v. Briscoe . . ii. 412 Hudson V. Bartram ... ii. 400 V. Baxendale . . . i. 782, 799 i>. Bilton i. 719 V. Oarmichael ii. 362 0. Clementson i. 702 V. Cook ii. 917 V. Granger i. 83, 682 V. Hudson ii. 936 V. Revett .... ii. 856, 857 V. Temple ii. 400 Hudson's Case ii. 306 Hudspeth v. Yarnold . . . . ii. 654 Hudston V. Mid. Rv- Co. . i. 750, 773 Huffell V. Armitstead . . . i. 418, 450 Huggins V Coates ii. 598 Hughes, In re ii. 701 V. Clark i. 364 u. Done ii. 751 u. Graeme . . I 121, 689 ; ii. 548 ti. Humphreys . . i. 6.58 ; ii. 749 V. Lenny . . . . i. 576 ; ii. 582 V. Met. Ry. Co i. 408 i;. Parker ii. 381 o. Statham ii. 725 V. Sutherland ii. 67 Hulbert v. Long i. 292 Hull 0. City of London Brewery Co i. 358 V. Cooper ii. 147 Hulme V. 'Tenant .... i. 218 Hulse, jEx parte ii. 683 I/. Hulse i. 24 lii INDEX OF ENGLISH CASES. Humble !•. Hunter . . i. 84, 324, 336 V. Langston ... ii. 564, 904 V. Mitchell ... i. 263 ; ii. 556 'Ramby , Ex parte i. 170 Hume V. Bentley ii. 384 V. Poeouk .... ii. 4'23, 427 Humfrey v. Dale . i. 85, 88, 117, 332 ; ii. 433 u. Gery . . . . i. 480 ; ii. 870 Humphrey v. Bullen . . . . ii. 358 Humphreys v. Briant . . . . ii. 656 V. Jones ii. 877, 883 V. Lucas i. 83 V. Pratt ii. 585 d. Welling ii. 725 Hungerford v. Clay .... ii. 19 Hunsden v. Cheyney . . . . ii. 705 Hunt, £x parte ii. 41 V. Allgood i. 402 V. Bate i. 20 V. Colson i. .345 V. De Blaquier .... i. 225 „. Downman . . . . i. 397, 399 V. Elraes ii. 34, 37 V. Gunn ii. 559, 560 V. Hart i. 2i)6 i: Hecht ii. 435, 436 u. Hunt ii. 353 !'. Maniere i. 673 V. Matthews ii. 3.30 V. Roy. Ex. Ass. Co. . ii. 168 V. Silk ii. 545, 786 (/. Wimbledon Local Board i. 151, 156, 182 Plunter, Ex parte ii. 409 V. Caldwell i. 545 K. Fry i. 720 V. Hunt ii. 688 V. Leathley . . . ii. 122, 150, 160 u. Nockolds ii. 870 t/. Parker V. Potts . 51 . i. 712 ; ii. 139, 947 V. Welsh . . . . i. 664 ; ii. 602 V. Wright ii. 184 Huntley, Tlie ii. 69 u. Griffltli ii. 357 V. Sanderson ii. 878 Huntocke v. Blacklowe . . . ii. 739 Hupe V. Piielps i. 592 Hurley v. Baker . . . ii. 407, 603 Hurry v. Roy. Ex. Ass. Co. ii. 153, 180 Hurst V. Beach ii. 9 D.Gt.WesternRy. Co. . . i. 750 V. Hurst ii. 685 V. Orbell ii. 599 V. Usborne i. 698, 701 Husband v. Davis ... ii. 818, 853 Hussey v. Crickitt ii. 587 V. Home Payne . . . i. 88, 295 Hutchings v. Nunes . . ii. 488, 494 Hutchins c. Scott . . i. 504;ii. 856 Hutchinson i;, Bowker . . i. 334, 335 Hutchinson v. Guion .... i. 610 V. Heyworth ii- 846 V. Morley ii- 522 V. Tatham i- 333 V. Wright . . . . ii. 119 u. York, Newc. & Ber. Ry. Co i. 639, 644 Hutley u. Hutley . . . ii. 721 Huttman v. Boulnois .... i. (152 Hutton V. BraL'g ... i. 694, 722 1-. Bullock i. 84 V. Eyre ii. 833 V. Mansel . . . ii. 324 V. Parker .... ii. 741 V. Warren . i. 331, 426, 437 Huxley v, O'Connor . ii. 6-54 Hyatt V. Griffiths i. 426 Hybart v. Parker ... . i. 169 Hyde v. Hyde ii. 340 t . Johnson i. 280 u. Trent Navigation Co. . i. 755, 793, 818 V. Warden . i. 361, 404 ; ii. 386 Hyne v. Dewduey . . . . ii. 654 Ibbett v. De La Salle . . i. 500, 688 Ibbotson i'. Rhodes .... ii. 36 Ibbs I'. Richardson .... i. 375 Ida, The . . . . . ii. 70 Idle V. Roy. Ex. Ass. Co. . . ii. 162 Hey V. Frankenstein . . ii. 533 Imperial Bank u. London & S. Kath. Docks ii. 485 Imperial Credit Co., Liquidators of, V. Coleman .... ii. 287 Imp. -Gas Co. r. Lond. Gas Co. ii. 879 Imperial Land Co., Re . . . ii. 896 Inchbald u. Western Neilglierry Tea Co. i. 572, 628, 681 ; ii. 583, 799 Ind's Case ... . . . ii. 562 Indomitable, The ii. 70 Ingham r. Primrose i.544; ii. 251, 856 Inglis V. Butterby i. 296 u. Usherwood i. 318 V. Vaux ii. 160 Ingram v. Barnes ii. 760 y. Lee i. 328 Inman v. Stamp i. 257 Inman Steam Co. u. BischoS . ii. 156 Innell v. Newman ii. 355 lunes V. Dunlop ii. 895 0. Stephenson . . i. 545 ; ii. 819 Inns of Court Hotel Co., In re i. 523 Insole, In re ii. 356 lona, The i. 716 lonides r. Pender ... ii. 117, 131 c. The Un. Marine Ass. Co. ii. 137, 142, 161 c^. The Pacific Fire Ins. Co. ii. 120, 121 Ireland v. Jolinson 1. 504 INDEX OF ENGLISH CASES. liii Ireland v. Lingston . . . . ii. 4C6 V. Livingstone . . . i. 124, OOB V. Thompson ... i. 676, 708 Bank of, v. Trustees Evans's Charities . i. (jOO ; ii. 569, 572 Ireson v. Pearmiin . . . . i. 697, 698 Irish Peat Co. v. Pliillips . . ii. 2!M Iron Duke, Tlie i. 716 Irvine v. Watson i. 88 Irving !'. Clegg i. 702 V. Greenwood . . . ii. 327 V. Union Bank of Australia i. 160, 522 t). Manning ii. 116, 160 V. Richardson ii. 118 V. Veitoh . . ii. 875, 883, 887 u. Watson . . . . ii. 818 V. Wilson ii. 598 Isaack v. Clark . . . . i. 536 ; ii. 53 Isaacson v. Harwood .... i. 300 Isaacs y. The Royal Ins. Co. . i. 310; ii. 192 Isherwood v. Oldknovv . . . ii. 906 V. Whitmore ... ii. 468, 798 Israel v. Clark i. 739 V. Douglas ii. 845 V. Israel ii. 654 V. Simmons i. 82 Ithel V. Potter i. 279 Ivans V. Draper i. 74 Ivens «. Elwes . . . i. 301 ; ii. 873 Iveson I'. Conington .... i. 68 Izon V. Gorton i. 375 Jaokman v. Mitchell . . . . ii. 730 Jackson, Ex parte ii. 11 V. Butler ii. 41 V. Cator i. 400 V. Cobbin i. 16 V. Cocker ii. 574 V. Collins ii. 238 V. Cummins i. 615 V. Davison ii. 726 V. Duchaire ii. 104 V. Forster ii. 209 V. Galloway i. 730 V. Lever ii. 374 V. Lomas ii. 730 u. Lowe . . . . i. 275; ii. 431 V. Metropolitan Ry. . . . i. 754 V. Nichol ii. 490 V. North-Eastern Ry. Co. i. 300 ; ii. 309, 849 V. Ogg ii. 878 V. Stopherd ii. 276 v. Tollett i. 741 u. Turquand . . . i. 41 ; ii. 320 V. Union Mar. Ins. i. 701; ii. 156 V. Whitehead ii. 427 V. Woolley ii. 889 Jacob V. Hart ii. 619 Jacob V. Kirk i. 280 7). Lindsay ii. 621 Jacobs, Ex parte ii. 866 V. Latour . . i. 588, 622 ; ii. 438 V. Seward '^ ii. 282 Jacques v. Miller ii. 677 Jakeman v. Cook ii. 864 James v. Bion ii. 18 V. Catherwood . . . . ii. 621 V. Child ii. 822 v. Cochrane i. 300 V. Emery i. "5 V. Griffin ii. 493 V. Isaacs ii. 839 V. Jones i. 695 c;. Lichfield ii. 394 u. Morgan ii. 082 V. Shore ii. 368 V. Thomas . . . . . ii. 684 V. Williams . . i. 24 ; ii. 807 Jameson v. Brick Co. ... ii. 963 Janiieson v. Laurie . . . i. 729 V. Swainstone . . . . i. 669 Jane, The ii. 157 Janes v. Whitbread i. 73 Jaqiies v. Miller i. 349 V. Witliy ii. 601 Jardine v. Leatliley . . . . ii. 163 Jarman v. Wolloton . . ii. 330, 336 Jarvis v. Wilkins i. 297 Jason V. Eyres ii. 17 Jauncey v. Knowles . . . . ii. 279 Jay, Ex parte i. 227 V. Richardson . . . . ii. 901 Jaynes v. Hughes ii. 869 .Jeakes v. White ii. .382 Jeavons, Ex parte ii, 726 Jebsoii i;.E.& W. India Dock Co. ii. 682 Jee V. Thurlow . . . . . ii. 365 JetTery v. Walton i. 828 Ji'fferyes v. Legendra . . . ii. 128 Jeffreson v. Morton . . . ii. 923 Jeffrey v. Neale i. 371 Jeffreys v. Jeffreys . . . . ii. 702 Jeffs V. Day ii. 899 Jemott V. Cowley ii. 48 Jendwine v. Slade ... ii. 423, 618 Jenkin v. Row ii. 28 Jenkins v. Betliam . . . i. 599 t>. Blizard . . . i. 144 ; ii. 655 V. Geihing i. 391 V. Heycock ii. 124 u. Hutchinson . . . . i. 116, 122 V. Jones ii. 426 I'. Morris .... i. 234; ii. 229 V. Tucker ii. 582 Jenkyns v. Brown . . ii. 456, 496, 825 V. Usborne .... ii. 457, 488 Jenner v. Clegg . . . . i. 425, 466 u. Morris i. 214, 222 !■. Smith ii. 456 Jenner's Case ii. 288 liv INDEX OF ENGLISH CASES. Jennings v. Bronghton V. Brown . . . V. Gt. N. Ry. Co. u. Hammond V. Jolinson , . Blurton .... ii. V. Gibbs i. Kirkham v. Marter .... i. liirkman v. Shawcross . . i. 620, 290 731 751 761 673 175 703 244 451 349 201 122 323 482 618 200 ,525 ,358 i. 53 , m .. 430 i. 74 542 139 577 662 568 228 209 499 328 . 741 . 858 i. 24 424 815 102 404 294 463 918 175 542 441 546 i. 34 401 i. 38 682 874 823 184 787 i. 92 132 727 ,262 ,703 .266 766 Kirkwood v. Thompson . . . . ii. 31 Kirtland v. Pounsett .... i- 376 Kirton v. Braithwaite . . . ii. 827 r. Eliott i. 197, 201 Kirwan v. Kirwan i. 143 Kiscli V. Venezuela Ry. Co. ii. 774 Kish V. Cory i. 730, 731 Ivitchen v. Bartsch . . . . ii. 952 V. Buckly . . . . i. 76; ii. 913 V. Campbell ii. 858 Kitchin v. Hawkins . . , . ii. 804 Kitson r. Hardwick . . . . ii. 950 Kleinwort & Co. <.. The Cassa Maritima of Genoa .... ii. 70 Kleinwort v. Sliepard . . . ii. 168 Knapp u. Harden i. 328 Knatchbull v. Grueber . . . ii. 413 Knight V. Barber . . . i. 98 ; ii. 666 I-. Bennett . . . . i. 863 ; 467 V. Bowyer i. 671 (. Burgess ii. 948 c. Camber ii. 748 r. Clements ii. 254 V. Cox i. 505 v. Crockford . . . i. 278 ; ii. 405 V. Egerton i. 508 (. Faith ... ii. 151, 162, 166 ( . Hopper ii. 452 V. Hunt ii. 731 Knight's Case ...... ii. 304 Knights V. Quarles . . i. 597 ; ii. 922 V. Wiffen ii. 487 Knill V. Williams . . . . ii. 619, 620 l\notl, Ex pinte ii. 37 Knowles v. Jlichel . . . . ii. 604 Knowlman v. Bluett .... i. 272 Knox V. Bushell i. 214 I'. Gye ii. 868, 892 !. Walley ii. 609 Knye v. Moore ii. 718 Koebel v. Saunders . ii. 126, 138, 140 Kooystra r. Lucas ... . i. 349 Kopitoff I'. Wilson .... i. 709 Koster v. Reed . . . ii. 140 Kraus v. Arnold . . . ii. 825 Kreuger i\ Blanck . . . . ii. 406 Kronheim v. Jolinson . . . i. 278, 279 Kropley v. Maycock .... i. 41 Kruger !•. Wilcox i. 682 Kuper's Case ii. 306 Kusel !'. Watson i. 277 Kymer v. Laurie .... i. 544 r. Suwercropp .... i. 88 Kynnaird v. Leslie . . . i. 239 Laeoucheee v. Dawson Lacey , Ex parte . . . Lachlan p. Reynolds . Lackington v. Atherton Laclough V. Towle Lacy V. Kinaston . . ii. 779, , 742 865 396 439 829 838 INDEX OF ENGLISH CASES. Ivii Lacy 11. M'Neile . . i. 209;!!. 845 V. Osbaldiston i. B48 r. Woolcott i. 144 Ladbroke v. Crickett .... ii. 69 Ladbury, Ex parte ii. 956 Ladd 11. Lynn i. 223 ti. Thomas i. 4y4 Laidler o. Burlinson . . . . ii. 449 V. Elliott i. 694, 597 Laing, Ex parte ii. 8B5 V. Holloway i. 729 V. Mender ii. 826 V. Keid i. 190 Laird v. Birkenhead Ry. Co. . ii. 552 V. Pirn ii. 410, 7U6 Lake v. Argyll, Duke of . . i. 174 V. Butler ii. 741 V. Campbell i. 659 V. Smith i. 427 Lakeman v. Montstephen . . i. 267 Lamare v. Dixon ii. 698 La Marquise de Rebeyre v. Bar- clay i. 538 Lamb i;. Brewster i. 871 V. Bunce i. 186 Lambert v. Atkins i. 212 V. Buckm.ister .... i. 684 V. Heath ii. 560 V. Knott i. 182, 184 V. Liddard ii. 159 V. Robinson i. 802 V. Rogers ii. 21 Lambert's Case i. 129 Lambourn v. Cork ii. 836 Lamburn v. Cruden i. 652 Lamert v. Heath . i. 670 ; ii. 602, 785 Lamine v. Dorrell ii. 596 Lamlee v. Hanman . . . . ii. 338 Lamond v. Davall ii. 469 Lampleigh v. Braithwaite . i. 15, 22, 60, 565 Lampon v. C'orke i. 338 Lamprell v. Billericay . . i. 153, 157 Lancashire v. liillingworth . i. 651 ; ii. 793, 798 Lancashire Wagon Co. u. Fitz- hugh i. 513 Lancaster v. Eve . . . . i. 387, 392 Lance v. Norman ii. 330 Lanchester v. Frewer . . . i. 188 V. Tricker i. 185, 188 Land Credit Co. of Ireland, In re ii. 264 V. Lord Fermoy . . ii. 287, 320 Land Owners Co. v. Asliford . ii. 310 Landman v. Entwisle . . . i. 71, 176 Lane, In re ii. 563 V. Burghart i. 269 V. Cotton i. 526 V. Dixon J. 430 V. Drinkwater i. 75 V. Goodwin ii. 346 Lane v. Hill ii. 604 V. Ironmonger .... i. 215 V. Mclveen i. 220 V. Nixon ii. 153 Lang V. Anderdon ii. 127 V. Gale i. 309 Langdale v. Mason . . . . ii. 191 V. Parry i. 70 Langden v. Stokes ii. 833 Langdon v. Goole i. 297 V. Wilson ii. 654 Langford v. Administratrix of Tyler ii. 444 V. Selmes i. 464 Langfort v. Tiler . . . . ii. 462, 483 Langmead v. Maple . . . . ii. 858 Langstaffe v. Fenwick ... ii. 22 Langston, Ex parte . . . ii. 39, 42 Langton v. Carleton .... i. 635 0. Higgins ii. 454 V. Waite i. 614 V. Waring ii. 454 Lanphier v. Phipos . . . i. 591, 601 Lansdale v. Clark ii. 751 Lanyon v. Blanchard .... i. 683 V. Toogood ii. 462 Lapostre v. Le Plaistrier . . ii. 503 Lara v. Gen. Apoth. Co. . . i. 564 Laroche v. Oswin ii. 158 Last V. Dinn i. 76 Latch V. Rumner Ry. Co. . i. 742, 743 Latham v. Rutley . . i. 828 ; ii. 653 V. Spedding i. 434 Lathropp v. Marsh .... i. .399 La Touche v. La Touche . i. 14, 217 Laurel, The ii. 71 Laurence v. Laurence . . . ii. 339 Laurie v. Douglas i. 711 V. Scholefield ii. 93 Lavabre v. Wilson ii. 160 Laver v. Fielder . . i. 329 ; ii. 329 Laveroni v. Drury . i. 606, 708, 712, 745 Lavery v. Turley ii. 847 Law V. Lond. Indisp. Life Ass. Co. ii. 200, 209 V. ParneU ii. 222 V. Wilkin i. 26, 197 Lawes, Ex parte ii. 302 V. Purser . . . . . ii. 553 Lawrence v. Accid. Insur. Co. ii. 211 1 . Aberdein . . i. 711 ; ii. 140 V. Fletcher i. 685 V. Walmsley . . . ii. 83, 94, 230 Laws V. Rand ii. 249 Lawson v. Burness .... i. 729 V. Dickenson i. 686 V. Weston ii. 265 Lawton v. Lawton i. 394 V. Newland ii. 61 Lax ton v. Peat ii. 98 Lay V. Mottram i. 301 Iviii INDEX OF ENGLISH CASES. Layard v. Maud La Ysabel . . . Lay cock v. Pickles Laythoarp v. Bryant Layton v. Pearce . Lazarus v. Cowie . Lea V. Minne V. Wliitaker Leach v. Mullet . V. Thomas . Leadbitter v. Farrow Leader v. Homewood Leadley v. Evans . Leaf V. Coles . . . Leak r. Babington . Leask v. Scott, Bros. Leathain v. Terry Leather v. Simpson Leather Cloth Co. v. Lorsont Leatherdale v. Sweepstone . Lebel v. Tucker . . . Le Blanch o. Granger . . f. Lond. & S. West. Ky. . . ii. 34 . ii. 70 . ii. 604, 608 . . i. 270 . . ii. 78!) 218, 225, 662 . . ii. 941 . . ii. 407 . . ii. 395 . . i. 391 . 118; h. 258 . i. ;JU5, 440 . . ii. 87 ii. 279 ii. 7.j6 495, 896 ii. 164 i. 123 ii. 740 ii. 825 i. 318 ii. 708 i. 751, 820 594 181 11. 819, Leby i: Abbott i. 147, Le Cheminant v. Pearson . ii. Lechmere v. Fletcher . ii. 885 Leek V. Maestaer . . i. 604 LeConteuro. The Lond. &S. West. Ey. Co. . . . i. 750, 762, 774, 775 Le Cras v. Hughes . ii. 118, 178 Lee V. Bayes i. 624, 626 V. Coleshill ii. 734 t. Cooke ii. 491 V. Gaskill i. 263 V. Griffin . . V. Jones . . V. Lancashire Co. . . V. Merrott . r. Page . . V. Kisdon V. Smith . . V. Southern Ins V. Walker . V. Wilmot . Leeds v. Clieetham V. Cook . . V. Wright Leeds Banking Co. Leeman v. Lloyd Leeming v. Snaith Lees V. Mosley . V. Whitconib V. Whiteley Leese v. Martin . Leeson v. Holt . Lefevre v. Boyle Legal V. Miller . Legg V. Benion ('. Evans . 543 524 i. 292 i. 24 ii. 187 i. 553 i. 769 i. 130 ii. 704 i. 414 i. 622 ii. 309 Legg V. Strudn'ick . . . . i. 351 Legge !'. Harlock . . i. 583 ; ii. 690 Leggott V. Barrett . . . . ii. 742 i: Gt. North. Ey. Co ii. 922 Legli V. Legh . . . . . ii. 894 V. Liilie .... i. 438 ; ii. 685 Lehain v. Pliilpot . . . . i. 499 Lehman c. McArthur . . i. 361 Leicester v. Eose . . . ii. 731 Leidemann v. Schultz . . i. 729 Leifchild's Case i. 40 Leigh V. Banner . . ii. 645 i. Lille . . . . . ii. 788 !'. Paterson . . . ii. 479 V. Shepherd . . . . i. 472 V. Smith . . . . . . i. 607 r. Thornton . . . . ii. 872 Leighton v. Wales . ii. 689, 739 Le Jouet, The . . . . i. 567 Lekeux v. Nash . . . . . ii. 904 Leman v. Fletcher . . . . ii. 757 v. Houseley . . . . . ii. 757 Lemere r. Elliott . . . . ii. 605 Le Mesurier v Vaughan ii. 121 Lerapriero ?•. Pasley . . i. 616 Lennard v. Robinson . i. 69, 115 Leonard Loniu's Case . . ii. 921 Leonimo i\ Leonimo . . ii, 924 Le Pointeur i:. S. East. Ey. Co. i. 823 Leroux v. Brown . i. 316; ii. 891 Leslie i'. Fitzpatrick . . . . i. 194 V. Wilson .... i. 696 Lester v. Garland . . . . i. 310 Letcliford (. Oldham . ii. 175 Letlibridge v. Adams . . ii. 300 y. Pliillips . . . . i. 526 Leuckhart v. Cooper . i. 619, 621 Leuzberg's Policy, In re ii. 598, 601, 731, 767 Leventhorpe v. Ashbre . . ii. 921 Leverson r. Lane . . . . . i. 139 Levet f. llawes . . . i. 62 Levey, /;/ re . . . ii. 882, 886 Levin v. Newnham . . ii. 145 Levy !■. Alexander . . . . ii. 668 V. Baillie .... . ii. 195 V. Green . . ii. 466 V. Lewis . i. 347, 374 V. Metrop. Cab Co. . . . i. 162 1. Vaughan .... . ii. 145 V. Walker .... ii. 282 Lewes i'. Eidge .... . ii. 906, 911 Lewin v. Guest .... . . ii. 392 Lewis, Ex parte .... . . ii. 720 Lewis n. Billing.. . . . . . ii. 314 u. Brass . . i. 38 -,. Campbell . ii 424, 591, 900 u. Davidson . . ii. 717 V. Gompertz . . . . ii. 236 t.. Gt. West. Ey. Co. i. 786, 789. 790 . . ii. 697 !■. Hammond . . INDEX OF ENGLISH CASES. lix Lewis V. Harris i. 470 0. Hillman ii. 779 V. Joliii ii. 42 !'. Joiies . . . . ii. 101, 731, 852 V. Leonard ii. 837 V. Lond. Chat. & Dov. Ky. i. 754 V. M'Kee .... "i. 725, 72G V. Marshall i. 335 V. Nic;holsoii . . i. 124 V. Peacliy i. B60 i;. Peake ii. 548 '. Dorville . . . . i. 30 Longworth's Executors, Ex parte ii. 297 Loosemore v. Radford . ii. 107, 672 Loraine v. Thomlinson . . . ii. 182 Lord V. Hall i. 91, 214 V. Mid. Ry. Co 1. 790 Lord Southampton v. Brown . . i. 65 Loring v. Warburton .... i. 494 Lorymer v. Smith . . . . ii. 468 Loscombe v. Russel . . . ii. 276 Louglier v. Williams . . . ii. 916 Lovatt w. Hamilton . i. 697 ; ii. 468 Lovegrove i'. Lond., Br. & S. C. Ry. Co i. 639, 645 1-. White i. 147, 595 Lovell i". Newton i. 212 Lovelock V. Frankland . . . ii. 615 V. Franklyn ii. 325, 613, 791 V. King i. 586 Loveridge v. Cooper . . . . ii. 898 Lovett V. Hobbs . . . i. 745, 826 Lowe & Son v. N. West. Ey. Co. i. 151 Lowe V. Copestake . . . ii. 217 V. Eg! n ton .... ii. 850 ?■. Griffith i. 194, 198 V. Peers . . . . ii. 321, 072, 689 <. Peskett ii. 936 V. Peters . . . . . ii. 685 V. Ross i. 375 Lowe's Case ii. 301, 567 Lowndes i'. Bray .... ii. 405 1. Fountain . . . . i. 438, 446 c. Garnet & Mosely Gold Min- ing Co ii, 884 V. Lane li. 534 Lowry v. Barker ii. 966 V. Bourdieu ... ii. 117, 601 V. Guilford i. 596 Lowtlier v. Lowther . . . . ii. 481 Lowthian !■. Hasel . ... ii. 32 Loyd V. Frcshfield i. 521 Lozano v. Janson ... ii. 143, 168 Luard, Ex parte ii. 306 Lubbock !•. Inglis i. 628 u. Potts ii. 184 V. Tribe ii. 606 Lucas r. Beach ... ii. 273, 056 V. Beale . i. 74 V. Bristow . . . i. 332 ; ii. 461 V. De la Cour i. 129 a. Dennison ii. 21 (J. Dorrien i. 682 <•. Godwin . . . i. 573, 580, .582 !■. Novosilieski . . . ii. 813 V. Tarleton . . . i. 499, 504, 608 V. Wilkinson ii. 811 V. Worswiok ... ii. 693, 609 Luckie r. Bushby ii. 181 Lucy V. Levington ii. 918 !'. Mouflet . . . ii. 435, 455 Ludlow, Mayor of, r. Charlton i. 152, 155 Luff K Lord ii. 779 Luker v. Dennis ii. 709, 710, 743, 901 INDEX OF ENGLISH CASES. ki Lukin V. Godsall i. 399 Luniley v. Gye i. 048 V. Hodgson . . . . i. 876 ; ii. 12 V. Miisgrave ii. 809 V. Wagner ii. 708 Lumstlen'e Case ... ii. 564, 668 Lumsten v. Buelianan i. 207 ; ii. 293 Lundy Granite Co., Re . . i. 465, 481 Lusli V. Kiissell i. 648 V. Wilkinson ii. 336 Lusliington v. Price ... ii 28 Luxembourg Ry. Co. i. Magnay ii. 286 Lyall V. Edwards . . . ii. 835 Lyde v. Russell i. 440 Lyme, Mayor of, v. Henley . i. 362 Lynch, Ex parte i. 193 V. Dunsford ii. 132 v. Hamilton ii. 1.32 V. McKenny ii. 867 Lynn v. Bruce ii. 850 Lynne, Case of Mayor of, . . i. 149 Lyon r. Mells . i. 510, 710, 768, 787 V. Ueid . . . . i. 408, 410, 510 V. Tomkins i. 498 Lyons v. Elliot i. 480 Lysney v. Selby . . ii. .391, 506, 523 Lyster's Case ii. 304 Lyte V. Peny i. 64 Lyth V. Ault . . . . ii. 808, 843, 849 Lyttleton v. Cross ii. 929 Ma.voss v. Henderson . . . i. 683 Maber v. Maber . . . . . ii. 889 Maberley v. Robins . . ii. 382, 404 V. Sheppard ii. 438 MacAndrew v. Btll . . . . ii. 132 V. Chappie i. 697 II. Elect. Tel. Co. ... i. 829 MacAndrews v. Vaughan . ii. 172 M'Ardle v. The Irish Iodine Co. i. 87 M' Arthur v. Seaforth, Lord . i. 623 Macbeath v. Ellis . . . . i. Ill, -594 V. Haldimand i. 124 Macbryde v. Weekes . . . . ii. 400 M'Call V. Taylor ... ii. 216, 243 McCance v. Lond. & N. West. Rv. Co. i. 337, 762, 787, 788, 820, 824 M'Carogher v. Whieldon . . ii. 31 M'Carthy v. Abel ii. 164 V. Young i. 521 McCawley v. Furness Ry. Co. i. 753 Maclean v. Dunn ii. 483 Macclesfield, Earl of, v. Davis ii. 481 McCollen v. Gilpin .... i. 122 McConnell v. Hector .... i. 237 Macdonald v. Law ii. 201 MacDonald v. Longbottora i. 294, 329 V. Ramsay ... i. 238; ii. 937 M'Donnell v. Pope .... i. 411 M'Dougall V. Jersey Imp. Hotel Co., Limited i. 522 Macdougle v. R. Ex. Asa. Co. ii. 176 Macdowall v. Eraser . . . . ii. 129 Mace V. Cammel i. 220 McEniry v. Waterford . . . i. 644 M'Ewan v. Smith ii. 486 M'Ewen v. Woods .... i. 663 Macfarlane !'. Norris .... i. 316 M'Gahey v. Alston .... ii. 88 M'George v. Egan i. 213 Macgregor v. Deal & Dover Ry. Co. i. 120, 124 ; ii. 309 V. S. E. Ry. Co ii. 725 M'llenry v. Davis i. 219 Machu V. L. & S. West. Ry. Co. i. 781 Mcllreath v. Margetson . . . ii. 588 Mclntyre v. Belcher i. 308, 632; ii. 577 MTver v. Henderson . . . . ii. 169 V. Humble i. 144 (■.Richardson , . i. 39; ii. 85 Mackay, Ex parte ii. 726 V. Dick ii. 471, 772 McKean v. MTvor . . . . i. 793, 798 McKenzie v, British Linen Co. i. 337 Mackenzie v. Hancock . . . ii. 547 V. Hesketh ii. 783 V. Scott i. 667 V. Whitworth . . ii. 121, 122 M'Kenzie v. McLeod .... i. 384 V. Pooley i. 106 V. Robinson ii. 19 Maekersaj' v. Ramsays . . . i. 675 McICewan's Case ii. 294 Mackewan i'. Sanderson . . . ii. 730 M'Kinnell v. Robinson . ii. 718, 748 Mackintosh v. Marshall . . . ii. 130 V. Mitcheson i. 104 Mackrell v. Hunt ii. 374 Mackreth v. Symmons ... ii. 43 M'Kune v. Joynson . . . i. 57; 278 Maclae v. Sutherland .... i. 173 McLaren v. Baxter i. 66 MacLean v. Dunn i. 92, 281 ; ii. 483 M'Clean v. Nicholle .... ii. 430 McLeish i>: Tate i. 467 Mcllalion v. Field . . i. 823 ; ii. 677 M'Manus v. Crickett .... i. 529 V. Lane. & York. Ry. Co. i. 747, 784, 785, 788 Macnee v. Gorst ii. 55 M'Neill V. Cahill ii. 720 M'Neillage v. HoUovvay . . . ii. 942 M'Niel's Case .... ii. 297, 774 McQueen v. Gt. West. Ry. Co. i. 781, 828 Macrow v. Gt. West. Ry. Co. i. 750, 773 McSwiney v. R. Ex. Ass. Co. ii. 118 Maddeford v. Austwiok . . . ii. 537 Maddick v. Marshall .... i. 177 Maddon v. White .... i. 195 Maddox k. L. C. & D. Ry. Co. i. 754 Magdalena Steam Navig. Co., In re i. 523 Ixii INDEX OF ENGLISH CASES. Magennis v. Fallon . . ii. 398, 517 Magnay v. Edwards .... ii.. 913 Magnus v. Buttemer ... ii. lAH Maguire's Case . . . . ii. 303 Maiiony v. East Holyford Mining Co. . . . . i. 160 V. Kekule i. 116, 117 Maillard v. Duke of Argyll ii. 806, 807, 810 Maine v. Melbourne . . . . ii. 371 Mainpriee v. Westley . . ii. 367 Mainwaring ;;. Brandon i. 664; ii. 680 V. Leslie . . . . . . i. 221 . . ii. 273 . . ii. 268 i. 176; ii. 315 i. u. 1. 49 695 379 413 185 409 ii. 740, 741, 764 . i. 268; ii. 81 . . . i. 668 West. Ry. i. 328 . ii. 235, 240 . . . ii. 200 i. 234 . . i. 215, 221 V. Newman . Mair v. Glennie . . Maitland, Ex parte V. Maekinnon Major V. White . . Makin v. Watkinsou Malins v. Ereeman Malkin v. Vickerstaff Mallam r. Arden . Mallan v. May i. 291 Mallet V. Bateman . Mallough V. Barber Malpass v. Lond. & S. Maltass v. Siddle . Maltby v. Murrell . Manby v. Bewicke V. Scott . . . Manchester, The Duke of . i. 716 Manchester Warehouse Co. w. Carr i. 366, 379, 385 Manchester & Liverpool Dist. Bk., JEx parte . ii. 866 Manners, Lord, v. Johnson . . ii. 711 Manfleld t>. Maitland . ... i. 719 Manley v. Boycot . . . i. 79 ; ii. 83 Manlove v. Bale .... ii. 17 Manly v. Peel ii. 620 Mann, Ex parte ii. 250 V. Forester . . . i. 683 V. Lovejoy i. 3.')2 V. Stephens ii. 709 Manning, Ex parte . . . . ii. 374 V. Cox ii. 836 u. Lunn ii. 820 V. Phelps ii. 868 Manningford v. Toleman . ii 39 Mann's Case i. 200 Mansell v. Burredge i. 80 Manser v. Dix .... i. 430 Mansfield v. Stephen i. 34 Manson v. BaiUie .... i. 569 V. Thacket ii. 390 Maples V. Weightman . . . i. 194 March v. Culpepper i. 18 V. Hutchinson i. 217 Marchant v. Evans . . , . ii. 756 Mare v. Charles . . i. 191 ; ii. 258 V. Earle ii. 730 V. Warner ii. 730 Margetson v. Wright . . . ii. 517 Maria v. Hall i- 238 Marie Louise, The . . . . ii. 495 Marino's Case ii. 568 Markham v. Gonaston . . ii. 857 Marks v. Hamilton . . . . ii. 186 Marlborough, Duke of, c. Osborne ii. 792 Marquand v. Banner . . . i. 726 Marriage v. Marriage . . ii- 46 Marriot r. Hampton . . . . ii. 593 Marriott u. Anchor Reversionary Co ii. 31, 67 V. L. & S. West. Ry. Co. . i. 809 Marrynt r. Broderiek . i. 5.33 ; ii. 768 V. Marryat . i. 300 ; ii. 849, 857 Marryatts v. White . . ii. 821 Jlarsak i: Webber . . . ii. 587 Marsh /■. Davies . . . . i. 184 V. Dewes . . . . i. 434 V. Home ... i. 760 i: Pedder ii. 817 U.Wood i. 308 Marshall v. Berridge . ii. 677 V Broadlmrst ... ii. 922, 930 V. Green . . i. 260, 261 ; ii. 473 V. Hopkins . . . ii. .S'.^ (J. Lynn . . i. 324; ii. 463 t\ Parsons . ... i. 677 V. Poole . . . . . ii. 673 i\ Powell . . ii. 655 V. Rutton . . . i. 217 V. Watson . . . . ii. 279 V. Yk. & Newc. Ry. Co. . i. 692, 742, 758,816; ii. 696 Marson v. Short . . . . ii. 646 Marston r. Allen ii. 223 Martin, E.r parte . . . . ii. 570 u. Andrews . . . . . ii. 600 V. Clue i. 3.^1 f. Crompe .... ii. 913, 939 V. Gale i. 197 V. Gilham . . . . i. 388 u. Great Indian Pen. Co. i. 748, 784 V. Hewson ... . . ii. 768 v. Knowles . . . . ii. 883 V. Mitchell ii. 410 V. Nutkin ... i. 184 ; ii. 707 V. Pycroft ii. 699 V. Keid ii. 58, 438 V. Sedge wick ii. 38 !'. Sitwell ii. 183 V. Smith . . . . i. 353 ; ii. 408 V. Whitmore ii. 65 V. Wright ii. 93, 046 Martindale v. Smith . ii. 401, 482, 497 Martineau v. Kitchen . . ii. 186, 451 Martinez v. Cooper ii. 37 Martyn .•. Clue ... i. 305 ; ii. 909 V. Hind i. 60, 01 V. Williams .... ii. 906, 909 Martyr v. Bradley . . . . i. 395, 439 INDEX OF ENGLISH CASES. Ixiii Martyr v. Lawrence .... i. 3i9 Marvin v. Wallis ii. 439 Mary Ann, The ii. fiS Maryon u. Carter . . . . i. 368, 582 Marzetti r. Williams . . . i. 54, 543 ; ii. 580, 671 Masoal's Case ii. 912 Mashiter v. Buller ' i. 719 Mason v. Bradley ii. 252 V. Broadbent ii. 889 V. Cole i. 300 V. Corder .... ii. 385, 398 V. Harvey ii. 193 V. Mitchell i.-lld V. Morgan ii. 942 V. Pritchard ii. 92 o. Rumsey ii. 260 V. Sainsbury ... ii. 182, 196 0. Skurrey ii. 172 V. Wright I . i. 194 Massey v. Banner i. 546 V. Knowles ■ i. 185 V. Sladen .... ii. 790, 79ij Massy V. Nanney ii. 628 Master v. Hansard .... i. 339 V. Miller ii. 252, 894 Master Butchers, &c., Co. u. Bul- lock ii. 795 Master Warden of Tobacco Pipe Makers, The, v. Lader . . ii. 873 Masters, fnre ii. 722 0. Baretto ii. 245 V. Farris i. 507 Masterton u. Mayor of Brooktyre i. 587, 628 Mather v. Eraser ii. 75 V. Maidstone, Lord . ii. 223, 228, 788 Matheson r. Ross ii. 620 Mathew v. Blackmore . . . . ii. 9 Mathews v. Gibbs i. 707 V. Savvell i. 411 Mathison v. Clark i. 130 Matson v. Booth ... ii. 856, 857 V. Wharam i. 267 Matthewman's Case .... i. 219 Matthews, Ex parte . . . . ii. 866 V. Baxter i. 231 V. Bowler ii. 44 V. Bloxsome ii. 217 ti. Hopping i. 707, 744 I'. L e ii. 718 Matthias v. Mesnard .... i. 480 Matthiessen u. London & County Bank i. 553 Mattock V. Kinglake . 1. 807 ; ii. 402 Matures v. Westwood . . . ii. 906 Maudsley, £x pa?-(e . . . . ii. 318 V. Le Blanc i. 175 Maugham v. Hubbard . . . ii. 621 V. Sharpe . . . . i. 66 ; ii. 51 Maund's Case ii. 914 Maunsell v. White ii. 338 Mavjng V. Todd i. 7(i6 Mavor v. Pyne . . i. 263, 274 ; ii. 584 Mavro v. Ocean Marine Insur. Co. ii. 176 Maxted v. Paine ii. 558 Maxwell V. brain ii. 2.36 0. Jameson ii. 592 Maxwell's Case ii. 294 May V. Chapman . . i. 139; ii. 224 V, Harvey i. 531 V. May i. 78 V. Thomson ii. 701 y, Woodward i. 80 Mayall v. Mitford ii. 190 Mayd v. Field i. 218 Maydew v, Forrester . . . . ii. 591 Mayer v. Isaac ii. 92 Mayfield v. Wadsley .... i. 260 Mayhew, Ex parte ii. 304 V. Fames i. 758 V. Nelson i. 777 V. Suttle . . . i. 413, 647 ; ii. 51 Maynard v. Moseley . . . . ii. 419 iMayou, Ex parte ii. 280' Mead i>. Davidson ii. 117 Meadows, In re i. 553 V. Tanner ii. 367 Mearing v. Hellings ... ii. 600 Mears v. Lon. & S. W. Ry. Co. i. 513 Mechelen v. Wallace .... i. 468 iVIedina v. Stoughton . . . . ii. 502 Medina, The i. 568 Meering v. Duke ii. 845 Meert v. Moessard ii. 845 Megginson v. Harper . 1. 130 ; ii. 891 Megrath v. Gray ii. 866 Melan v. Duke de Fitzjames . i. 317 Melanotic v. Teasdale . . ii. 654 Melbourne Corporation i>. Brougham i. 150 Melhado v. Porto Alegre Ry. Co. i. 93 V. Watson ii. 885 Mellersh v. Rippen . . . . ii. 236 Mellish V. AUnutt . . . . ii. 148 V. Andrews ii. 163 V. Bell ii. 120 V. Motteux ii. 541 1). Staniforth ii. 145 Mellona, The i. 715 Mellor's Policy Trust, In re . ii. 200 Mellors v. Shaw . i. 638, 640, 641, 843 Melville v. Hayden ... ii. 93 Menetone v. Athawes . i. 574, 584, 585 V. Gibbons ii. 69 Menzies v. Lightfoot .... ii. 36 Mercantile Mar. Ins. Co. v. Tether- ington i. 310 Mercantile Steamship Co. v. Tyser ii. 131, 141, 154 Mercer v. Cheese ii. 807 V, Graves i. 684 Ixiv INDEX OF ENGLISH CASES. Mercer v. Irving ii. 689 V. Whall i. 658 Mercliant Banking Co. u. Plioenix Steel Co ii. 485 Merchant Co. of London, Ex parte ii. 866 Mercliant Shipping Co. v. Armi- tage i. 721 Merchants' Trading Co. f. Banner ii. 699 Meredith, £:j; parte . . ii. 215, 201 V. Footner i. 21^J p. Holman ii. 750 <;. Meigh . . . ii. 439, 4H V. Short . . . . . i. -70 Meres ;;. Ansell i. ;)26 Meretony v. Diinlope. . . . ii. 151 Meriel v. Wynioiidsol . . . . i. 69 Merle v. Wells ii. 92 Merriman i\ Ward . . . . ii. 820 Merry r. Niekalls ii. 658 Merryweather ;;. Jones . ii. 334, 721, 703 Mersey Docks v. Gibbs . . . i. 600 Mesnard v. Aldridge . . . . ii. 369 Mesnil, Baron de, v. Dakin . . ii. 597 Messenger, In re. . . . . i. 685 0. Armstrong . . . . i. 427 Messent i'. Reynolds . . . . ii. 578 Metcalf I'. Bruin . ... i. 130 Metcalfe u. Britannia Iron Works Co i. 721 V. London & Br. Ey. Co. . i 627, 780, 798, 817, S28 V. Richardson ii. 236 t^. Rycroft . . . . . i. 05 V. Shaw i. 215, 217 Metropolitan Bank v. Heiron . ii. 892 Metropolitan Coun. Ass. Co. c. Brown i. 395; ii. 11 Metropolitan Ey. u. Defries . i. 377 V. Jackson .... . i. 754 Metzner v. Bolton .... i. 635 Meux V. Smith ii. 40 Mews V. Carr .... i. 281 ; ii. 369 V. Mews ii. 352 Mexican & South American Co., In re ii. 300 Meyer v. Dresser . . i. 318, 705, 720 ; ii. 496 V. Everth .... ii. 513, 522 V. Haworth i. 226 V. Ralli ii. 173, 177 MeyerhofE v. ITroerlich . . . ii. 883 Michael v. Fripp ii. 67 Michal V. Tredwin ii. 123 Micklethwaite r. Merrill . . ii. 59 Middlemore v. Goodale . . . ii. 900, 942 Middleton v. Fowler ... 1. 529, 827 V. Greenwood . . . . ii. 699 Middlewood v. Blakes . . . ii. 131 Midgeley v. Lovelace . . . i. 76, 374 ; ii. 911,919 Midgley v. Wood ii. 345 Mid. Banking Co. u. Chambers ii. Ill, 112 Mid. C. Ben. Build. Soc, In re ii 290 Mid. Rail. Co. v. Bromley . . i. 774 V. L. & N. W. Rv. Co. . . ii. .'309 Midleton v. Eliot ... . ii. 24 Milbourn v Ewart ii. 352 Mildmay's, Sir Antliony, Case i. 299 Miles r. Cattle i. 822 V. Furber . . . . i. 480, 483 f. Williams ii. 943 Milford V. Hughes i. 664 V. Feile ii. 333 Milgate y. Kebble . . i. 614;ii. 482 Millard v. Harvey i. 208 Millen v. Brash i, 820 V. Dent . . . . . ii. 645 Miller v. Aris i. 126 V. Cook i. 201 u. Hamilton i. 99 u. Miller ii. 281 V. Race . . ii. 215, 265, 266, 811 V. Sawyer ii. 109 V. Thompson . . . ii. 243 V. Titherington . i. 733 ; ii. 135 f. Travcrs . . . i. 295, 296 ;;. Woodfall . . . ii 164, 105 Miller's Case ii. 289 Millersliip i-. Brookes i. 53 Milles V. Fletcher ii. 169 Mills i: Alderbury . . . , ii. bbS u. Ball ii. 494 V. Blackall i. 32 V. Borthwick ii. 878 0. East Lond. Un. i. 445; ii. 803 u. Fowkes .... ii. 821, 886 V. GofE i. 418 V. Guard, &c ii. 89 V. Haywood i. 39 o. Jennings ii. 36 f. Oddy ii. 396 Millward v. Littlewood . . ii. 325, 800 Milner v. Field i. 577, 578 V. Harewood, Lord i. 194; ii. 133 p. Milnes .... ii. 941, 943 Milnes I'. Branch ii. 915 i'. Busk i. 219 V. Duncan ii. 593 V. Grey ii. 703 Milroy v. Lord i. 14 Milward v. Hibbert . . i. 733 ; ii. 135 V. Ingram ii. 608 Minet v. Gibson ii. 217 Minett o. Anderson ii. 152 Mingotti's Case ii. 293 MinshuU v. Oakes . . . ii. 908, 910 Mirabita v. Imperial Ottoman Bank ii. 457 Mitcalfe's Case ii. 288 INDEX OF ENGLISH CASES. Ixv Mitchell II. Ede ii. 405 V. Edie ii. lUli V. King ii. 826 V. Newliall . . . i. 670; ii. 560 V. Reynolds ii. T.TO u. Smitli ii. 221 V. Steward ii. 709 Mitchell's Case . i. 199; ii. 571, 882 Mitelieson i'. Niool i. 719 Mitfhinson v. Hewson . .1.15; ii. 913 V. Oliver . . . i. 106; ii. 805 Mitford i: Mitford ii. 950 Mixer's Case ii. 296, 778 Mizen v. Pick i. 221 Moakes v. Nicholson Ii. 448, 456, 487, 490 Mody V. Gregson ii. 509 Moens y. Ilcyvvorth. . . ii. 513, 515 Moffat V. Dickson i. 577 V. Laurie i. 572 V. Parsons ii. 820 V. Van Millingen . . . . ii. 274 Moggridge v. Jones ii. 482 MiOir I). Exch. Ass. Co. . . .11.128 Molesworth v. Robbins ... 1. 686 MoUer ;,•. Young .... i. 723, 730 Mollet V. Wackerbath . . . . ii. 855 MoUwo & Co. V. Court of Wards i. 134 Molony v. Kennedy . . . . ii. 358 Molton !.'. Caniroux . . . . i. 235 MondeU'. Steel . . i. 581;ii. 481 Money v. Jorden ii. 338 Moneypenny v. Bristovr . . . ii. 594 V. Hartland .... i. 590, 592 Monk V. Cooper i. 387 Monopolies Case ii. 743 Montacute v. Maxwell . . . ii. 329 Montague 1-. Benedict . . . . 1.215 V. Flockton ii. 708 Montefiore v. Lloyd .... ii. 89 Monteflori v. Montefiori . . . Ii. 338 Montgomery v. Calland ... ii. 24 Montoya v. Lon. Ass. Co. . . ii. 140 Moodie v. Bannister . . . . ii. 881 Moody V. Spencer i. 685 Moon i;. Durden ii. 748 Moor V. Roberts ii. 85 Moore v. Bushell . . . . i. 03, 127 V. Campbell ii. 828 V. Culverhouse .... ii. 25 K. Davis ii. 268 V. Frowd i. 569 B. Hart ii. 330 V. Hill ii. 841 u. Marrable ii. 413 V. Maxwell ii. 676 V. Mourgue i. 558 V. Pyrko ii. 592 V. Ramsden ii. 737 V, Rawlins i. 158 V. Taylor ii. 150 V. Wilson i. 815 VOL. in. Moore v. Woolsey ... ii. 205, 209 Moorhouse v. Colvin . . . . ii. 329 V. Lee ii. 760 Moorsom v. Page i. 702 Moran v. Jones i. 735 Mordy v. Jones ii. 156 Morewood v. Pollock . . . i. 715, 718 Morgan, Ex parte . . . . ii. 39, 302 V. Bain ii. 830, 864 u. Birnie i. 577 V. BisseU i. 344 0. Davis i. 416 V. Griffith i. 326 V. Jones ii. 673 V. Met. Ry. Co i. 243 V. Oswald 11. 744 V. Palmer ii. 597 V. Pike i. 68, 308 0. Ravey i. 54, 455, 458, 458 ; ii. 580 V. Rowland ii. 888 V. Stable i. 597 V. Thomas ... i. 216 ; ii. 355 V. Vale of Neath Ry. Co. i. 044, 645, 646 Morier, Ex parte i. 546 Morison v. Tumour .... i. 279 Morley v. Attenborough . ii. 503, 504 V. Boothby i. 46 V. Bridges ii. 24 V. Culverwell ii. 218 V. Pincombe i. 477 V. Polhill ii. 918 Morpliett V. Jones . . . . i. 256, 343 Morrell v. Cowan ii. 91 v. Frith ii. 883 Morrctt v. Paske .... ii, 32, 35 Morris u. Chapman . . ii. 717, 725 t). Dixon ii. 656, 885 V. Edgington ... i. 349, 358 V. Hunt i. 570 V. Lea ii. 243 0. Levison '. ii. 467 !•. M'CuUoch ii. 728 Morris's Estate, In re ... ii. 936 Morrison, Ex parte . . . i. 684 ; ii. 836 V. Arbuthnot ii. 337 V. Chadwick . . . . i. 368, 381 V. Parsons ii. 894 ,.. Thompson . ... i. 662 V. Universal Marine Ins. . ii. 777 , Morritt v. N. East. Ry. Co. . i. 794 Morse v. Merest ii. 415 V. Slue i. 696 Mors-le-Blanch v. Wilson . . ii. 680 Morten v. Marshall . . . ii. 85, 797 Mortimer v. Bell ii. 366 V. Capper ii. 374 Mortimore v. Wright . i. 26, 197, 202 Mortlock r. Buller . ii. 393, 413, 416 Morton v. Burn . . i. 30, 32; ii. 899 V. Tibbett ii. 437 V. Withers i. 216 Ixvi INDEX OF ENGLISH CASES. Morton w. Woods i. 347, 465, 407 ; ii. II Moseley v. Handford .... i. 324 r. Rendell . . . i. 204 ; u. '.l.'-;4 u. Tinklen i. V.) V. Virgin ii. 700 Moses !■. Macferlan . , . . ii. 770 V. Pratt ii. 183 Mosley v. Foster 1. 608 V. Hide ii. 788 Moss, Ex parte ii. 40 He i. 086 V. Byrom . . . . ii. 145 v. Gallimore ii. lli V. Hall ii. 97, 230 V. Smitli ii. 166 V. Sweet ii. 53.3 V. Townsend ... . i. 463 Mostyn V Mostyn , . i. 570 V. West Mostyn Coal Co. . ii. 423 Mouflet V. Cole ... . ii. 741 Moule V. Garratt . . . . ii. '.)04 Moulton V. Edmonds . . ii. 388 Mount V. Harrison .... ii. 162 V. Larkins .... ii. 159 Mountacue r. Maxwell i. 271 Mountcasliel, Earl, v. Barber . i. 180 Mountford v. Harper . . . ii. 810 V. Scott . . .... ii, 41 Mountnoy v. ColIi,er . i. 434; ii. 13 Mountstephen v. Brooke . . . ii. 885 v. Lakeman . . . . i. 208 Mouse's Case . . . . i. 7-33, 812 Mousley i'. Ludlam .... i. 4^17 Mouys V. Leake ii. 703 Mowatt V. Lord Londesborough ii. 317 Moyce v. Newington . . ii. 542 Moyle v., Jenkins .... i. 640 Mozley r. Tinkler .... ii. 85 Mucklow V. Mangles ... ii. 449 Mudford v. Clarke . . ii- 775 Muilman v. D'Eguino . ii. 237 Muir V. City of Glasgow Bank i. 207 ; ii. 2:13 V. Fleming . . MuUett !'. flutchinson V. Mason r. Shedden . . Muggeridgc, /« re . Mulliner v. Florence Mullings V. Trinder Mumford v. Gething i. 294, .329; ii. 741 Mummery r. Paul .... ii. 516 Muncey v. Dennis . . i. 439 Munday v. Asprey . . i. 277 Mundy v. JoUiffe . i. 256, 343 Munn V. Godbold . . . . ii. 621 Munns v. Isle of Wight Ky. Co. ii. 44 Munro v. Butt .... i. 578, 579 Munster v. S. East. Ry. . . i. 774 784 Munt V. Shrews. & Chest. Ky. Co. ii. 307 Murphy v. Bell ii. 119 V. Boeae i. 281 . 1 015 . 11 6.54 II. 538, 671 11. 143, 163 11. i 579 4r,2 . 11 412 Murphv V. Caralli ... i. 6.39 V. b'Shea i. 665 Murray v. Barlee . . . i. 218, 225 V. Busli ... ii. 294, 301, S02 V. Earl of Stair .... i. 53 V. East Ind. Co. . . ii. 262, 922 a. Glasse ii. 352 (•■. Mann i. 673 V. Reeves ii. 726 Muschamp v. Lane. & Prest. Ey. Co. i. 796 Musgrave r. Drake ii. 223 Musgrave's Case . . . ii. 568 Musgrave & Hart's Case . . ii. 561 Muspratt v. Gregory . i. 478, 482 .Mussen v. Price ... . . ii. 471 Mutual Loan Fund, &c., v. Sudlow ii. 83 Mycock r. Beatson ... ii. 44 Myers v. Edge . .... ii. 90 i: Lond. & S. West. By. Co. i. 747 V. Sari i. 382, 586 V. Willis i. 106 Mynn u. Joliffe ii. 813 Myrtle v. Beaver . . i. 124 Mytton V. Cock ... . i. 561 u. Mid. Ey. Co. . . i. 796, 819 jS'apin, /ir parte 1.428 Nanny v. Martin . . . i. 211 ; ii. 361 Nant-y-Glo Iron Co. 0. Grave . ii. 288 Napier v. Bruce . . . . ii. bO Nargatt v. Niar ... i. 470, 500 Nash V. Hodson . . ii. 886 u. Lucas ... i. 474 r. Nash . . i. 211 ; ii. 361 Natal Inv. Co., In re . . . ii. 896 Nation i: Tozer i. 376 Nation's C;ise ii. 567 National & Prov. Marine Ins. Co., Jir parte Parker ... ii. 568 National Ass. Co. r. Best . ii. 213 National Bank of Australasia v. United Hand-in-IIand Co. ii. 22, 24 National Funds Assur. Ci>., In re ii. 288 National Indus. &Prov. Soc.,7nreii. 290 National Ins. Ass., He . i. 684 National Mercantile Bank, Ex parte i. 260 National Perm. Ben. Build. Soc, In re i. 190, 191 National Provincial Bank r. Harle ii. 898 National Savings Bank Ass. v. Tranah ii. 809 Navone v. Haddon . . . ii. 174 Naylor v. CoUinge . . i. 305, 439 V. Mangles . . . . i. 619 V. Palmer ii. 146 V. Taylor ii. 142, 169 Neal V. Irving i. 90 Neale v. Day ii. 335 u. Mackenzie i. 357, 466 ; ii. 699 INDEX OF ENGLISH CASES. Ixvii Neale v. Ratcliffle . . . . i. 305, 380 V. Sheffield ii. 836 V. Turton ii. 273, 274 Neap !'. Abbot ii. 413 Neat !'. Harding ii. 695 Nedliam's Case ii. 352 Neediiam v. Breniner . . . i. 220 Needliam's Case ii. 305 Needier w. Guest i. 574 Neill ». Ridley i. 719 I'. VVliitworth . . , i. 698 Neilson v. Harford i. 335 Nelson (The) ... ii. 70 V. Baxter .... . i. 534 V. Couch ii. 858 K.iDuncombe i. 235 V. Serle . . ■ i. 206 Neltliorpe v. Holgate . . . . ii. 394 Nepoter, The i. 106 Nerot V. Wallace . . . . ii. 725, 726 Nesbitt i'. Lushington . . ii. 143 Nesham v. Selby . . . i. 277 Nettleship, iix parte ii. 42 Neve V. Hollands .... ii. 890 V. Pennell ii. 25, 35 Nevill's Case ii. 101, 305 Neville, Ex parte . . . i. 595 V. Snelling i. 201 V. Wilkinson ii. 838 New V. Swain . . . . ii. 464, 488 New Bruns. Co. u. Muggeridge ii. 317, 657, 574, 702 New Jersey St. Nav. Co. c. Mer- chants' Bank i. 765 New Sombrero Co. v. Erlanger ii. 298 New Zealand Co. v. Watson i. 127, 676 Newall V. Tomlinson .... i. 126 Newberry v. Colvin .... i. O'.lo Newby v. Painter . . . ii. 395 o. Sliarp ii. 803 Newcastle, In re ii. 302 Newcastle Fire Ins. Co. v. Mac- morran ii. 187 Newcomb v. Harvey . . . ii. 915 Newcombe v. IJe Roos ... i. 45 Newell «. Radford i. 276, 279; ii. 430 Newington v. Levey . ii. 823, 836, 858 Newington Local Board v. Couing- ham Local Board . . . . ii. 803 Newington Local Board v. El- dridge i. 686 Newland v Watkin . . . . ii. 737 Newman, In re ii. 693 V. Anderton i. 449 V. Rodgers ii. 400 V. Selfe ii. 29 V. Walters . . . . i. 14, 16, 567 Newmarch v. Clay . . . . ii. 821 Newport, Mayor of, v. Saunders i. 375 Newry & Ennis Ry. Co. v. Combe i. 199 Newsom v. Smythies . . ii. 793, 796 Newsome v. Coles i. 144 Newsome v. Graham . . . . ii. 594 Newton, A'.r /(arte ii. 219 V. Belcher i. 176 V. Blunt i. 79 V. Chorlton ii. 110 f. Forster i. 629 V. Grand June. Ry. Co. . ii. 674 V. Harland i. 429 V. Liddiard . . . . i. 338 V. Marsden , . . . . ii. 321 V. Scott .... i. 465; ii. 863 Nichol v. Godts ii. 460 I'. Martin i. 647 Nichole v. Allen i. 197 NichoU r. Chambers . . . ii. 378 V. Greaves i. 635 V Jones i. 220 NichoUs !'. Atherstone . . i. 411 !■ Cross ii. 638 V. Plume ii. 441 i'. Saunders .... i. 309 V. Stretton ii. 739 , . Wilson i. 671 Nicliols i: Diamond . . . . ii. 258 I. Gt. Southern Co. . . . i. 754 V. Raynbred i. 34 Nicholson r. Bower . . . . ii. 493 V. Bradfield Union i. 154; ii. 468, 788 i: Chapman . . i. 568; ii. 582 V. Drury Buildings i. 225 ; ii. 366 t. (it. West. Ry. Co. . i. 810 i;. Kiiapp ii. 416 V. I'aget ii. 93 V. Revill . . . . ii. 102, 835 V. Ricketts ii. 786 Nickalls c. Merry i. 670 Nickells v. Atherstone . . . i. 411 Nickoll's Case ii. 294 Nickson v. Brohan i. 98 V. Jepson ii. 471 Nicloson t'. Wordsworth . . ii. 387 Nicol's Case ii. 296, 317 Nicolls V. Bastard . . . i. 62.5, 816 Nicolson V. Wordsworth . ii. 411 Niell V. Morley i. 235 Nightingale v. Withington . i. 201 Nisbet V. Smith ii. 97 Nixon I'. Freeman i. 474 Noble V. Bank of England . . ii. 255 V. Kennoway ii. 134 V. Nat. Disc. Co. . . i. 63; ii. 844 V. Ward . . i. 327 ; ii. 828 Nockells !'. Crosby . . ii. 316 699 Noke V. Awder ii. 907 Noke's Case ii. 578 Nokes V. Gibbon .... i. 16, 671 Nonnen v. Kettlewell . . . . ii. 149 Norbury's Case ii. 319 Norden c. Levit ii. 935 Norden Steamship Co. o. Demp- sey i. 729 Ixviii INDEX OF ENGLISH CASES. Norfolk, Duke of, o. Worthy . i. 88 Norfolk Ry. Co. v. M'Namara . ii. 857 Norman r. Cole . . ii. 724, 707 u. Phillips ii. -141 V. Thompson . . . . ii. 801 V. Villars ii. 35(i Norris !'. Aylett ii. 808 o. Irish Land Co. i. 243, 245 ; ii. 5B7 V Staps .... . ii. 581 Nortli V. Wakefield . . . . ii. 8:J.3 V. Wyard ii. 348 North Brit. Ass. Co. v. Lloyd ii. 104 V. Moffatt ii. 186 North British Ins. Co. v. Lond. Ins. Co ii. 195 Northcote v. Doughty . . . i. 200 Northcott V. ITnderhill . . . i. 308 Northern Assam Co., Inre . . ii. 896 Nortliey v. Field ii. 490 V. Northey ii. 302 North of England Ins. Co. v. Arm- strong . ii. 182 North of England Oil Cake Co. v. Archangel Ins. Co ii. 185 North- West. Ky. Co. .-. M'Miehael i. 190 Northumberland, Duke of, v. Er- rington i. 80 Northwaite y. Bennet. . . i. 185 u. Sharp i. 672 V. Whinray ii. 86 Norton i-. Cooper i. 5S4 V. EUani ii. 878 V. Eazan i. 221 u. Glover ii. 860 V. Herron i. 115 V. Seymour . . . i. 281 ; ii. 202 V. Turvill ii. 874 Nerval v. Pascoe ... ii. 908, 909 Norvv. V. Norfolk Ry. Co. . . i. 105 Norway, The i. 721 Notara i'. Henderson .... i. 708 Notlej', Ex parte ii. 278 Nott V. Riceard ii. 400 'NoUe, Ex parte ... . . ii. 113 Nottidge V. Pritehard . . . . ii. 818 Nottingham Hide, &e. Market Co. I'. Bottril il. 93 Nouaille v. Flight ii. 885 Novosielski v. Wakefield . ii. 21, 29 Nowell u. Mayor, &c., of Worces- ter i. 183 Nowlan v. Ablett i, 635 Noyes v. Crawley ii, 868 Nunn V. Fabian i. 256 ; ii. 371, 699, 702 u. Wilsmore . . . .ii. 335, 355 Nurse v. Barnes ii. 676 V. Craig i. -^24 V. Framton i. 66, 7.3 V. Wills ii. 042 Nuttall I'. Staunton .... i. 470 Nye v. Moseley ii. 718 Oakapple v. Copous .... i. 421 Oakden v. Pike . . . ii. 376, 387, 400 Oakes, Ex parte ii. 40 u. Turquand i. 158; ii. 295, 298, 570, 774 Oakley v. Monek i. 426 V. Ports, (fee. Steam Packet Co i. 755, 811 Oastler r. Henderson .... i. 409 Obbard v. Betham . . . . ii. 482 Obrian v. Ram ii. 94.3 O'Brien !■. Lewis ii. 720 O'Callaghan v. Marchioness of Thomand ii. 895 Ocean, The i. 237 Ocean Wave, The Oceanic Steam Navigation Co. i. 716 Sutherberry . . . . i. 203 Ockenden v. Ilenly . . . . ii. 407 Odham v. Bateman .... i. 62 Odwin V. Forbes . . . . ii. 713 Offly V. Ward . . . . . . i. 67 ()fford V. Davies . . 1.32; ii. 91 Ogden V. Benas .... i. 549 V. Fossick . . . . ii. 698, 699 . . . . ii. 743 Ogg r. Shuter ii. 457 Osilvie !'. Foljambe . 278; ii. 364, 883 Oglander v. Baston . i. 211; ii. 361 Ogle V. Atkinson . . i. 024 ; ii. 490 r. Earl Vane . . i. 327 ; ii. 478 Oglesby 1-. Iglesias .... i. 116 Ognell's Case ... . . ii. 357 O'Hanlan v. Gt. West. Ry. Co. i. 821, 824 ; ii. 479 Ohrlofe V. Briscall . . . . i. 710, 784 Okell I'. Smith ii. 546 Oldershaw i-. King . ii. 83 Oldham v. Langmead 1 336 Olding V. Smith .1. 156 11 761 Oliphant v. Bailey . 11 512 Olive V. Booker . . i 608, 702 11 127 V. Smith . . . 1 083 Oliver v. Dovatt 11 605 !■. Fielden i 697 V. Woodroffe i. 193 Oliverson v. Brightman . ii. 149, 158 Olivier, The ii. 70 O'Mealy ;•. Wilson .... i. 237 Ongley v. Chambers . . . i. 349 Onslow ?■. Corrie . . i. 400;ii. 904 Oom V. Bruce ... . . ii. 184 Oppenheim v. Fry ii. 172 V. Russell . . . i. 801 ; ii. 493 u. White Lion Hotel Co. i. 456, 458 Oppenheimer v. Levy . . . i. 286 Opperham v. Smith .... i. 485 Orby V. Trigg ii. 18 Orchard c. Rackstraw . . . i. 615 Ord V. Noel ii. 415 V. Portal ii. 217 INDEX OF ENGLISH CASES. Ixix O'Reilly V. Fetlierston ... ii. 19 V. Goniie .... . ii. 158 V. Royal Ex. Ass. Co. . . ii. 158 V. Tliompson ii. 371 Orelia, The ii. 70 Orford v. Cole ii. 653 Organ r. Brodie i. 104 Oridge r. Sherborne . , . . ii. 244 Oriental Inland Steam Co. ;:, Briggs M. 698 Oriental Financial Corp. u. Over- end, Gurney, & Co. . ii. 97, 99 Oi^me V. Broughton . . ii. 406, 922 V. Young ii. 98 Ormes v. Beadel . i. 577 ; ii. 778, 781 Ormond v. Holland . . . i. 644 Ormrod v. Huth ... ii. 513, 518 O'Rourke v. Bolingbroke . . i. 201 Orrell v. Coppock . . . i. 266 ; ii. 82 Osborn's Case i. 292 Osborne v. Bales ii. 686 V. Harper i. 77 Oswald V. Berwick .... ii. 87 Oswell V. Vigne ii. 125 Ottaway v. Hamilton . . . i. 222 Otto Hermann, The . . . i. 566 Ougier v. Jennings . . . ii. 136 Oulds V. Harrison ... ii. 222, 225 Overend, Gurney, & Co., In re ii. 225, 241, 288, 298, 561 Overend & Co. v. Gibbs V. Gurney . Overton v. Harvey Owen V. Bowen V. Burnett V. Davies V. Gooch V. Horn an V. Legh V. Routh . u. Van Uster Owens V. Denton V. Dickenson Owston V. Ogle . Oxendale v. Wetherell 11. 0511 122, 160 ii. 320 320 858 845 777 235 118 103 494 ii. 480 ii. 258 ii. 751 . i. 218 . ii. 270 ii. 472, 584 102, i. Oxford and Canterbury Hall, In re ii. 27 Oxford V. Prior i. 455 i>. Provand ii. 700 Oxlade v. North-East. Ey. Co. i. 747, 749, 750, 805 Oxley V. Watts i. 488 Pace v. Marsh ii. 83 Pacific, The ii. 68 Packer v. Gibbins . . . i. 375 Padget V. Priest ii. 931 Padstovv Total Loss Ass., In re ii. 267 Fa.ge, Ex parte ii. 866 V. Adam ii. 832 V. Cowasjee ii. 482 Page V. Home ii. 382 V. Meek ii. 806 r. More i. 427 Paget i.'. Foley ii. 870 Paice V. Walker i. 114 Pain y. Coombs ii. 699 u. Smith ii. 42 Paine v. Guard. Strand Union i. 153 V. Hayne i. 444 V. Hutchinson ... ii. 558, 574 V. Mellor ii. 373 Painter v. Abel ... . . ii. 9 r. Lond. & Bright. Ry. . i. 810 Palmer v. Bate ii. 734 V. Blackburn ii. 181 V. Carlisle ii. 28 i;. Edwards ii. 905 tj. Grand June. Ey. Co. . i. 814 (,. Hutchinson i. 125 V. Jarmain .... . ii. 265 r. Lond. & Bright. Rv. . i. 804 V. Lond. & S. West. Ry. Co. i. 810 V. Lond. Bright. & South Coast Ry. Co i. 809 i: Marshall il. 147 V. Naylor ... . ii. 142 1-. Neave . ... ii. 337 Palmerston, Lord, v. Turner Palyart v. Leckie . . Panama, The . . Panama & South Pacific Telegraph Co. V. India-rubber and Tele^ IL ii. 401 ii. 000, 767 ii. 71 ii. 780 i. 505 i. 424 i. 602 il. 801 ii. 306 graph Works Co. . . . Panton v. Jones Papillon V. Brunton . . Pappa V. Rose . . ... Paradine v. Jane i. 368, 380 Parbury, Ex parte Pardington i: S. Wales Ry. . i. 786 Pardo V. Bingham . . . . 11. 874 Pardee v. Price . . . . ii. 309 Parana, The . . . . i. 822 Pare v. Clegg . . . . i. 188 Pargeter v. Harris . . . i. 347; ii. 907 Paris Skating Rink Co., In re . i. 239 Parish i>. Sleeman . . i. 360 Park V. Hammond .... i. 668 Vaxher, Ex parte il. 568 0. Brist. & Ex. Ry. Co. i. 804; ii. 596 V. Brown ii. 7.34 V. Dubois . . . . . il. 656 V. Flint i. 453, 461 •J. Gt. West. Ry. Co. i. 804, 805, 807 ; il. 598 !'. Ibbetson . . . . . i. 332 I'. Lechmere . . . ii. 352 V. Lewis . . . . . . il. 106 V. McKenna . . . ii. 311 V. Patrick . . i. 617 ; Ii. 43 V. Potts . . . . ii. 125 V. Rawlings . . . . . i. 307 Ixx INDEX OF ENGLISH CASES. Pauling V. Lond. & N. West. Ry. V. Smith . i. 343 Co. . . . . . i. 157 V. Staniland . . . i. 260 Paull V. Simpson ... ii. 932 u. Taswell i. 284, 343 : ii. 699, 702 Pavy's Patent Felted Co., In re i. 682 u. Wallis ii. 437 Pawley v. TurnbuU . . . i. 578 V. Winlow . i. 115 Pavvson v. Ewer . . . ii. 127 V. Wise . . ii. 91 !■. Watson .... . ii. 515 Parkhurst ;;. Smith . i, 288 Payler v. Homersliam . . . ii. 836 Parkin ;;. Fry . ii. 313 Payne v. Banner . . . . ii. 794 V. Thorold .... ii. 404 V. Brecon, Mayor of, i. 150 ; ii. 764 Parkinson ". Gt. West. Ry. Co. i. 809 r. Cave . . . . i. 42 ; ii. 366 0. Hanhury ii. 22 < . Clmpman . . ii. 597 V. Lee . . . ii. 51)7 , . Haine i. 380 Parmenter v. Webber i. 34 3, 374, 464 ; .'. Jenkins . . . . . ii. 605 ii. 47 V. Rogers . ii. 836 Parmiter v. Cousins . . ii. 148 Pavnter r. James . i. 722 V. Parmiter . . . ii. 050, 883 " V. Williams i. 186 Parnham v. Hurst ii. 951 Peachey r. Rowland . i. 520 Parr v. Jewell . . . ii 225, 226 Peacock, 7?r /(arte . ii. 863 t. Winteringham i. 534 !■. Harris . . ii. 607 Parrott v. Anderson . . 473, 491 V. Peacock . ii. 279 V. Eyre . ... i. 181 I. Purscll ii. 807, ^09 V. Palmer . . . i. 400 V. Rhodes ... ii. 222 Parry )■. Aberdein . . ii. 108 Pearcc v. Brookes . ii. 718 r. Handle . ii. 348 V. Lindsay . . . . ii. 279 i. xvicliolson . ii. 252 V. Morris . . . ii. 18 V. Roberts . . i. 708 (-. Rogers . . . i. 98 V. Tlie Great Ship Co. ii 115, 788 i: Watts . . . i. 292 Parsons v. Alexander ii. 748 Pearl v. Deacon . ii. 110 r. Birmingliam Dairy Co. ii. 752 Pears r. Laing . ii. 21, 890 I . Gingell i. 482, 483 Pearse, Ex parte . ii. 41 I. Sexton . i. 576 ii. 467, 520 Pearson, Ex parte . . i. 164 ! . Spooner . . . ii. 313 u. Cardon ... i. 534 I-. Thomson . . . ii. 729 c. Commercial Un. Ass. Co. ii. 141, V. Walter i. 207 192 Parton v. Crofts ii. 4.33 V Commissioners of Inland Partridge r. Bank of Eng. ii. 248 Revenue, The . ii. 638 I. Bere . . . . • . ii. 8 V. Darrington ... i. 223 .,-. Strange . ii- 426 i: Dawson . ii. 440, 487 Pasley v. Freeman ii. 501, 502 u. F>xecutors . . . ii. 319 Passmore v. Nortli . ii. 217 !-. Henry . .... i. 15 Patchings v. Dubbings . ii. 709 V. Scott . . . i. 332,070; ii. 815 Patent File Co., hi re i. 162 V. Skelton . ii. 277 Patent Safety Gun Cotton Co. €. Pearson's Case . ii. 288 Wilson . . i. 548 Pease v. Gloahec . ii. 495 Pateriehe r. Powlet i. 326 V. Mead . . ii. 921 Paterson r. Gandasequi . . i. 89 Peate v. Dicken ii. 756, 845 V. Hardacre ii. 223 Peck V. Methold . . ii. 795 V. Harris ii. 1-38 Peckliani v. Faria , . . . i. 267 V. Long . . . ii. 385 Redder v. Watt . . . . ii. 805 V. Wallace . . . i. 038 Peek V. Larsen . . i. 695 Patman v. Harland ii. 902 r. Matthews ii. 712 Patrick v. Eames ii. 154 !■. N. Statr. Ry. Co., i. 274, 275, 612, V. Milner ii. 400 748, 709, 78-3, 784, 785, 780, 787, V. Reynolds . . . i. 178 789, 790 Patscheider t). Gt.West. Ry. i. 775, Peel !■. Tiiomas i, 170 795 Peel's Ciise .... i. 158 ; ii. 778 Pattison v. Luckey ii. 254, 855 Peer ;;. Humphrey . . i. 617 Paul V. Dod ii. 472 Peers r. Lambert ... . ii. 392 r. Joel .... ii. 2.36 Peeters v. Opie i. 304 V. Nurse . . . . i. 361 ; ii. 904 Pegler v. Monm. Ry., &c. Co. 1. 746, 803, Paule's Case .... ii. 670, 775 805 INDEX OF ENGLISH CASES. Ixxi Pegler v. White . . . . ii. 700 Peirce v. Bowles ii. 825 Pell V. Shearman ... ii. 676 Pellass V. The Neptune Co. . ii. 895 Pellatt V. Boosey i. 407 Pellatt's Case i. 39 Pellecat v. Angell ii. 752 Pelly V. Royal Exch. Ass. Co. ii. 134 Pemlierton v. Chapman . ii. 932 V. Vaughan ... ii. 653, 740 Penfold V. Abbott ii. 578 Peninsular & Oriental Steam Nav. Co. 0. Shand i. 316 Penkivil v. Connell . . ii. 263 Pennell v. Woodburn . . . ii. 648 Penniall v. Harborne . . . ii. 385 Penniford v. Hamilton . . ii. 653 Penny, Ex parte . ii. 566 V. Bryce . . . . . . ii. 875 V. Innes . . . . ii. 218 u. Porter . . . . ii. 789 V. Slade . . . . . ii. 604 Penrose v. Martyn . i. 163 ; ii. 263 Penson v. Lee ... . ii. 183 Penton v. Robart . . . i. 394 Pepper v. Burland . . . i. 586 Peppin V. Cooper ii. 87 Perkins v. Perkins i. 408 Perionowskie v. Freeman . i. 601 Perring v. Hone ... ii. 274, 620 Perrins v. Marine & Gen. Ins. Co. ii. 201 Perry, Ex parte . . ... ii. 3!) V. Attwood . . . . . ii. 811 o. Boucliier ii. 014 Perry-Herrick v. Attwood . . ii. 33 Peruvian Ry. Co. v. Thames & Mer- sey Marine Ins. Co. . . . ii. 263 Pesket V. Somers ... .1. 466 Petch i: Tutin .... Peter v. Compton , NicoUs V. Rich . . . Peters v. Anderson V. Brown . . V. Fleming . . V. Opie Peterson v. Ayre . Peto V. Blades 253 273 .".31 108 820 . i. 197 . i. 587 ii. 478, -631 ii. 423, 426, 500 Brighton, Uckfield, & Tun- bridge Wells Ry. Co. . ii. 698 V. Reynolds . Petre v. Duncombe Petrie v. Lamont Pett V. Smith . Pettiman v. Keble . Pettit's Estate . . Pettitt V. Mitchell Petty V. Anderson . V. Cooke . . V. Styward . Pewtress v. Austen Peyton v. Bladwell 216, 243 ii. 112 i. 502 i. 230 954 468 213 103 938 124 337 i. 743; Pfiel V. Vanbatenberg . . . ii. 813 Pfleger v. Browne . . . . ii. 804 Phantom, The i. 666 Pharmaceutical Soc. v. Lond. & Prov. Supply Assoc. . ii. 752 Phelps V. Lond. & N. West. Ry. Co. i. 750 V. Lyle i. 130 V. Prothero . . . . i. 82 Phene v, Popplewell . . . i. 409, 465 Phillimore !,•. Barry . i. 280;ii. 430 I'hillips, Ex parte ii. 746 V. Barber . . . ii. 138, 146 V. Berryman . . i, 503 ; ii. 858 f. BistoUi . . . . ii. 436 u. Briard i. 331 u. Broadley ... . ii V. Bucks, Duke of, . . . ii V. Clark . . i. 710 V. Clift . V. Edwards V. Eyre . . V. Fielding . u. Fo.xhall . u. Gould . . V. Headlara V. Henderson r. Hompliray V. Hunter . o. Irving . . u. Jones .... ... Lond. & S. West, V. Morrison . . V. Nairne i\ Phillips . o. Siiervill . . u. Smith . . V. Warren ii Phillipson v. Hayter . . i Phihiskirk v. Pluckwell . . i Philpot V. Swan . , . . ii Philpott V. Adams . V. Dobbinson V. Jones . Philpotts V. Evans . V. Reed . . Phipps V. Daubney V. Sculthorpe . c. Tanner . . Phipson V. Kneller . Phoenix Bessemer Steel Co., In re ii. 483 Phcenix Life Ins. Co., In re . . ii. 822 Phosphate of Lime Co. v. Green i. 93 Phosphate Sewage Co. ;;. Hartmont i. 537 ; ii. 287, 780 Phyn V. Royal Ex. Ass. Co. . ii. 146 11. , 679 . 884 .413 , 784 i 657 ii. 371 . . ii. 713 . . ii. 408 ii. 88, 95, 105 . . ii. 236 . . ii. 125 373 414 947 136, 153 633, 052 i. 825 628, 651 139, 100 ii. 935 ii. 863 i. 387 813 214 209 . h. 156 . ii. 585 i. 502 820, 821 , ii. 477 . ii. 867 i. 671 , 347, 376 . i. 297 . ii. 239 Rv. li. 622, ii. i. 465 ii. 751 Pianciani o. Lond. & Co Picard !>. Banks 0. Hine . 1'. Sears . S. West Ry. i. 776, 826 . ii. 600 . i. 218 . . i. 336 Pickering v. Barclay .... i. 711 Ixxii INDEX OF ENGLISH CASES. Pickering v. Busk . i: Dowson . . V. Ilfracombe Ry. Co r. Steplienson Pickering's Claim . Pickford v. Ewington V. Grand Junction Ry. Co. 11. II. II. Picknp V. Tliames Ins. Co. Pideock v. Bishop .... Piddington r. S. East Ry. Co Pidgeon v. Burslem Pierce ;■. Fotliergill t. Tiiomley Piercy v. Fynney . Pierpoint r. Gower . . Piers V. Piers . . ... Pierson v. Huglies Piggott V. Birtles V. Stratton Pigot V. Cubley . Pigot's Case . . Pigott V. Thompson Pike r. Eyre . V. Fitzgibhon, iufra Pilbrow V. Pilbrow's Co Pilkington v. Green V. Scott Pillar V. L^'nvi C'l Pillot r. Wjlkin^o Pilmore i-. Hood Pilton, Ex jjiirlr: . Pim i: ReM . Pince V. Beattie . Pindar r. Ainsh y V. Wad.s\vorth i. 399 Pinhorn v. Sou.^trr i. 356: ii. 12 i. 96 428, 639 ii. «9« ii. 2'.)0 J. 72 ii. 894 i. 747, 806, «L'0 ii. 126 114 8011 758 073 950 818 633 .■)47 . . . ii. 721 I. 489, 504, r,u'j . . . ii. 713 6i:3 ; ii. 58, 59 ii. 8."4 i. 81 i. 354 i. 218 . . i. 29'.) Co. i. 2i, 632 . ii. 761 i. 626, 627 . i. 432 ii. 189 ii. 720, 722 . i. .307 Pinnell's C,n>e . Pinner v. Arnold . i. 263 ; i Pinto V. Santos . . Pipon V. Cape . . . Piric V. Steele . . . Pistor V. Cater Pitcairn ;;. Ogboume . . . Pitcher v. Bailey . . . Pitchford i\ Davis . . . Pitman v. Uni\cr.sal Ins. Co. V. Woodbury Pitt V. I'urssord . . . u. Shew . . . V. Smith V. Yalden . . Pittman r. Foster . Pitts V. Beckett . Planche v. Colbum . . i V. Fletcher . Plantamour v. Staples Plaskett's Estate, In re Piatt r. Bromage i. 14, 31 549, 645 .545 125 , J'6, ii. 179 382 592 271 171 382 108 475 771 596 890 ii. 432 571, 628 ii. 141 ii. 153 ii. 720 ii. 593 11. 364 I. Playford v. U. K. Telegraph Co. i. i 829 Pleasant v. Benson .... i. 412 Plevins i'. Downing . . . . i. 327 Plimley r. Westley . . . . ii. '244 Plomer v. Long .... . . ii. 821 Plumb V. Fluit . . . ii. 38 Phimer v. Gregory . . . . i. 537 Plummer r. Wliiteley . . i. 374 u. Wildman . . . . i. 734 V. Woodburn . . ii. 860 Plymoutli, Countess of, v. Throg- morton . . . i. 652 Pochin V. Pawley . . i. 120, 1K8 Poingdestre r. K. Ex. Corp , ii. 179 Polak V. Kvcritt . . . ii. 90 Pole V. Fitzgerald . . , . . ii. 167 V. I.eask , . . .i. 87,89 Polglass (-. Oliver . . . . . ii. K25 I'olhill y. \V .liter . . 1. 90; ii. 300 Pollard r. Ogden . . . . i. 544 Pollen r. Brewer i. 430 Polle.xfen i: Moore . ii. .373 Pollitt V. Forest . . . i 467; ii. 688 Pollock v. Stables . . . i 070; ii.589 V. Siaccy i. 315, 375 Pomfret >■. Ricroft . . i. 516 J^ond r. Un'h r\\ end ii. 819 l\)ntet /■. Basing-toke C:in. 6'o. ii. :;oy Poole V. Adams . ii. 187, 197, 373 r Hill . . ii. 401,408 V. Middleton ii. 559 f. Shergold . . ii. 3'. 12 ?■. W.'trren . . i. 427 Poole's Case i. 3<'i7. 394 ii. 286. 287 Poole, Mayir of, i. Wliitt .368; ii. 15 Pooley V. Biidd . . ii. 480 r. Driver . . . i. 134, 136 t. Goodwin . . . ii. 621 r. Harradine ii. 8.3, 90 Pooley Hall Co., A. rr . . i. 160 I'ope V. Duncannon, Lord . ii. 415 f. Gt. East. liy. Co. . . . ii. 418 r. Roots . ii. 374 Poplelt r. Sloekdale ii. 719 Pordage v. Cole . i. 307 ; ii. 576, 577 Porter v. ( 'ocper . . . . ii. 604 i\ Drew . , i. 359 ! . Taylor . ii. 818 Porteus !■. W:itney . . . i. 728 Portland, Courili ss of, t I'rod- gers . i. 226 Portman v. Middleton ii. 678 V. Mill .... ii. 39« Portsfea, Isl. Un., Guard., i . AVhil- lier ii. yr, Postletbwaite v. I-'reeland . i. 729 Pothonier v. Dawson . . . ii. 3, 59 Pott V. C legg . ... . . i. 538 .■. V,\ loll . . . ii. 2(;8 '■. Fiafher . . . . . ii. 477 Potter 1'. Brown . . . . ii. 713 i\ C (Jiiiiiiissioners, &c. . . ii. 62« v. Debo.is . . . ii. 324 •-. Duffield . . i. 276 INDEX OF ENGLISH CASES. Ixxiii Potter D. Faulkner . . . . i. 639, 646 V. Rayworth ii. 238 V. Sanders i. 46 Potts V. Bell ii. 743 V. Plunkett i. GIJ'J, 643 V. Port Carlisle, &c. Ry. Co. i. 040, 6i'A Pouclier V. Norman . i. 565 Pougett V. Tomkyns . . . . ii. 345 Poultney v. Holmes .... i. 255 I'oulton V. Lattimore . . . . ii. 545 V. Lend. & N. West. Ry. Co. i. 800 Pountney, In re ii. 358 Poussard v. Speirs & Pond . i. 306 Pow V. Davis . . . i. 121, 689 ; ii. 080 Powell r. Divett .... ii. 855 V. Duff i. 48 i;. Edmunds ... i. -325 ... Graham ... i. 208 V. Gudgeon ii. 139 II. Horton ii. 460 V. Hyde ii. 142 D. Jessop . . i. 263; ii. 553 V. Monnier ii. 227 V. Oakely ii. 3.33, 336 V. Smith ii. 703, 783 V. Thomas ii- 552 Power V. Barliam ii. 518 V. Whitmore .... i. 734 Powers V. Powler i. 277 Powis V. Smith i. 76 Powles V. Innes ii. 119, 185 Pownal I). Perrand ii. 591 Poynder v. Bluek ii. 883 Prager v. Brist. & Exeter Ry. Co. i. 753 Pratt V. Ashley ii. 100 V. Thomas ii. 613 V. Willey ii. 814 Preece v. Corrie . . . . i. 374, 404 Prehni). Royal Bank of Liverpool ii. 256 Prescott V. Ingram ... . i. 348 Press V. Parker i. 294 Preston v. Merceau . . . i. 325 V. Tamplin i. 105 Prestwiok v. Marshall . . . i. 213 V. Poley i. 594 Price, Ex parte ii. 48 In re ii. 353 I,. Barker . . . ii. 100, 102, 835 ti. Carver .... . ii. 28 i;. Corporation of Penzance ii. 700 V. Dyer ii. 705 V. Easton . . . . i. 60 ; ii. 842 V. Fastnedge ii. 32 V. Gt. West. Ry. Co. . . ii. 673 V. Green . . . . ii. 690, 741, 764 V. Griffith ii. 394 V. Lea ii. 442 V. Ley ii. 393 V. Mitchell ii. 246 V. Moulton . . ii. 840, 857 u. Neale . . . ii. 600, 786 Price V. Nixon . . i.299;ii. 471 i^. Perrie . . .... ii. 18 u. Price . . . ii. 352, 807, 810 V. Salusbury . . . . ii. 699 V. Shute . . . . . ii. 253 V. Taylor . . i. 191 ; ii. 258 V. Thomas . . . . ii. 613 Price's Case . . . . . ii. 293 Prickett v. Badger i. 572, 651, 680, 681 Prideaux ». Bunnett . . . . ii. 511 y. Criddle ii. 235, 249 V. Lonsdale ii. 330, 773 Priest V. Parrot ii. 718 Priestley v. Fernie . i. 89, 107, 121, 696 Priestly v. Fowler . . . . i. 638, 640 Prince v. Oriental Bank Co. . i. 550 Prince of Wales Life Ass. Co. v. Harding i. 161, 162, 163, 171 ; ii. 206 Prince of Wales Ass. Co., In re i. 171 Pringle v. Hartley . . . ii. l(i!) V. Mollett i. 72IJ Prior V. Hembrow . . . ii. 587, 939 V. Wilson ii. 677 Pristwick v. Poley .... i. 596 Pritchard r. Merch. Life Ass. Co. ii. 205 Proctor V. Sargent ii. 740 Prodgers v. Langham . . . . ii. 382 Progress Ass. Co., Re . . i. 481 Prole V. Soady ii. 356, 705 V. Wiggins .... . ii. 727 Propert v. Parker . . . .1. 278, 309 Proprietors of English & Foreign Credit Co. v. Arduin . . i. 41 Prosser v. Watts . . . ii. 388 Protector Loan Co. .■. Grice . ii. 684 Proud V. Bates i. 359 Proudfoot V. Monteflnre . . ii. 133 Proudlove v. Trenilow . . . i. 508 Fronting v. Hammond . . ii. 604 Provender i'. Wood .... i. 60 Prugnell v. Gosse ii. 739 Pryce, In re . ii. 948 Paget de Bras v. Forbes . . ii. 228 Pugh V. Acton i. 396, 440 c;. Leeds, Duke of . i. 310, 350 ; ii. 205 V. Stringfield .... i. 76 Pulbrook V. Laws ... . i. 256 Pullen V. Palmer .... i. 471 Pulling V. Gt. East. Ry. Co. ii. 922 Pulsford V. Richards . . . ii. 315, 771 Pultney v. Keymer .... i. 682 Pulvertoft V. Pulvertoft . . . ii. 334 Funnett, Ex parte . . i. 347; ii. 11 Purdew v. Jackson . . . . ii. 9.50 Purdon v. Purdon ii. 604 Purves V. Landell i. 597 Purvis V. Rayer ii. 384 Pusey V. Pusey . . . . . ii. 481 Pust V. Dowie . i. 306, 699; ii. 797 Ixxiv INDEX OF ENGLISH CASES. Pybus V. Gibb . I*yke t: Williams I'yle V. Partridge I'yni V. Campbell ii. 656, 656, 657 i. ou5 Quebec Mar. Ins. Co. v. Tlie Com. Bank of Canada . . ii. l-o, Queen, The i- Queen, The, d. Mayor of Warwick Queen's College, Provost, &c., of, c. Hallett i. 385, Queensbury Indust. Soc. v. Pickles Quelin v. Moisson . . . Quick r. Ludburrovv . Quincey v. Sharp . . . Quincy, Ex parte 126 710 153 386 190 . 713 . 930 , 883 .440 Kabey v. Gilbert . ii. 238, 239 Kaekham v. Harriot . ii. 883 Rackstraw v. Imber . ii. 27B Radburu v. Morris . . . . . ii. 836 Radcliffe v. Rushworth ii. 269 Kadenhurst v. Bates . . ii. 275 Kadley v. Lond. & N. W. Ry. Co. i. 759 Rae V. Hackett . i. 696 Raffety v. King . . . . . ii. 21 Raffles V. Wicbelhaus . i. 295 ; ii. 782 Raggett, Jn re . . ii. 33 Railton v. Matthews . . . ii. 104 Rainbow v. Juggins ii. 110 Rainer v. Mortimer . i. 62 Rainsford i: Fenwick. . i. 197 Rainy v. Vernon . . i. 680 Raitt V. Mitchell . . . . i. 616, 687 Ealden, Ex parte . . . i. 685 Raleigh i\ Atkinson . . i. 663 Ealli V. Dennistoun . . ii. 811 V. Janson . . . . ii. 173 Ralph V. Harvey . . i. 170 Rambert v. Cohen . . ii. 621 Ramsbottom v. Davis ii. 616 V. Mortley . . ii. 643, 653 V. Tunbridge . . . ii. 653 Ramsden v. Dyson . ii. 651 y. Hylton . . ii. 836 V. Smith .... . ii. 333 Ramsgate Vict. Hotel Cc . V. Mon- tefiore . . i. 41 Ramuz v. Crowe ii. 228 Ramzotti v. Bowring . i. 83 Ranee's Case . . . ii. 320 Rand v. Vaughan . . . i. 485 Randal v. Cockran . . . ii. 182, 196 V. Harvey . . . . . i. 24 Randall v. Lynch . . . i. 303 V. Moon .... . ii. 242 (J. Morgan . . . . ii. 329 V. Newsom . . . . ii. 510 Randall y. Raper ... ii. 548, 681 V. Rigby . . . ii. 914 V. Stepliens i. 356 Randegger v. Holmes ... ii. 723 Randell v. Trimen . . . . i. 122, 690 Ranelagh, Lord, v. Melton . . ii. 400 Ranken i>. Alfars . . . ii. 257 Rankin v. Huskisson . ii. 709 V. Lay . . . ii. 699 V. Potter . . . . ii. 162 Eann v. Hughes . i. 15, 24, 264 Kannie v. Irving ii. 739 Eansome v. East. Co. Ry. Co. . i. 804, 805, 807, 809 Raper v. Birkbeck ii. 854 Raphael v. Bank of England ii. 222, 265, 266, 811 V. Pickford i. 793 V. Thames Valley Ry. Co. ii. 699 Rapp V. AUnutt . . . ii. 664 V. Latham . . i. 139, 537 Rashdall v. Ford . . i. 122 ; ii. 774 Eassel v. Hammond ii. 336 KatclifFz). Barnard . . . i. 598 v. Davies i. 623 ; ii. 357 Ravee v. Farmer . . ii. 859 Rawlings v. Bell . i. 500, 688 1-. Briggs . . . . i. 371 V. Morgan .... i. 382, 445 Rawlins v. Burgis . . . . ii. 373 y. Wickham . ii. 279, 515, 771, 772 Rawlinson v. Clarke . . ii. 269, 743 V. Shaw . . . . ii. 935, 936 Rawson v. Walker . . . . i. 824 Bawstone ». Gandell . . . ii. 836 Ray V. Barker . . . . ii. 533 V. Jones ii. 837 Eayment or Raymond v. Minton i. 668 Raymond v. Fitch . . .' . ii. 919 Rayner v. Preston . . . ii. 373 Raynor v. Fussey . . . ii. 99 u. Godmond . . . . ii. 175 !■. Grote i. 113 Read I'. Burley i. 478 V. Dunsmore i. 648 V. Fairbank .... . ii, 449 V. Hutchinson . . ii. 777 Read's Case . . . . ii. 931 Reade v. Meniaeff . . . ii. 787 Reader v. Kingham .... i. 266 Eeadhead v. The Mid. Ry. Co. i. 739, 741,762; ii. 510 Reardon v. Swaby ... . ii. 654 Reason v. Wirdnam . . i. 671 Reay v. White . . ii. 732, 853 Redding v. Wilkes . . . . ii. 371 Redhead v. Cater i. 70 V. Mid. Ry. Co. ... ii. 581 Redgrave v. Hurd . . ii. 517, 772 Redman v. Redman . . ii. 338 V. Wilson . . . . ii. 137 INDEX OF ENGLISH CASES. Ixxv Redmayne v. Forster .... ii. 76 Redmond V. Smith, i . ii. 124, 185 Uedpatli V. Roberts . . . , i. 450 Reece v. Rigby i. 690 Reed v. Deere ii. 619 V. Harvey ii. 956 II. Kilburn Co-operative Soc. i. 299 o. Lcgard i. 236 V. Moore i. 224 V. R. E.x. Ass. Co. . . . ii. 199 V. White ii. 808 Reedie v. London & Nortli-West. Ry. Co i. 529 Rees V. Berringtou .... ii. 97 V. Davies i. 438 V. Williams i 598 Rees River Silver Min. Co. v. Smith . . . ii. 570, 772, 775, 776 Reese River Co. v. Smith . . ii. 296 Reeve r. Bird i. 411 u. Davis i. 105 V. Palmer ... i. 606 ; ii. 877 V. Whitmore . . . i. 484 ; ii. 65 Reeves v. Capper i. 622 V. Slater i. 73 V. Watts i. 66 Reg. V. Birmingham . . . . ii. 343 V. Brancaster Churchwardens i. 242 V. Chadwic'k ii. 344 V. Charretie ii. 7Si V. Chawton i. 351 V. Churchwardens, &c. , . i. 242 u. Everdon ii. 613 K. Frere i. 811 u. Gen. Cera. Co. . i. 243 ; ii. 76, 567 V. Humphrey i. 306 V. Hurstborne, Tarrant, &c. i. 242 V. Lond. & Coleraine Ry. Co. ii. 567 u. Lond. & Soutliampton . i. 428 V. Longnor i. 47 V. Lord i. 194 V. Mayor, &o. of Stamford i. 153 V. Midland Ry ii. 567 u. Millis ii. 344 u. Norfolk Commissioners of Sewers i. 242 V. Ridgwell i. 61 V. Rotherham, &c. . . i. 181, 242 V. Salisbury, Marquis . . ii. 561 V. Silvester ii. 756 V. Smith i. 657 v. Stamford, Mayor of . i. 153 V. Stoke-upon-Trent . . i. 332, 649 V. Treasury . . . i. 600 ; ii. 595 V. Victoria Park Co. . . i. 240 V. Warwick, Mayor of . . i. 153 V. Welch . . i. 24, 632 ; ii. 582 V. Wing . ii. 567 u. Wood i. 147 V. Wortley ii, 269, 651 Regnart v. Porter i. 468 Held, -Ex parte ii. 44 V. Allan .... i. 171 ; ii. 120 u. Draper i. 114 1'. Purnival ii. 219 V. Parsons i. 403 V. Teakle i. 215 Reidpath's Case i. 45 Reimer v. Ringrose . . . . ii. 173 Rein v. Lane . ii. 643 Reliance, The ii. 71 Reneaux v. Teakle .... i. 215 Renels v. Cowlishaw .... i. 389 Rennie v. Clark . . . . i. 176 u. Robinson ... i. 376 ; ii. 908 V. Wynn i. 175 Reuss V. Picksley i. 274 Renter v. Elect. Tel. Co. . i. 154, 157 V. Sala .... ii. 467, 472 Revett V. Brown i. 365 Rew V. Pettet ii. 890 Rex V. Amersham ii. 642 i>. Atherton i. 636 V. Aylesbury ii. 642 V. Batheaston i. 634 V. Bathurst i. 429 V. Bitfg i. 156 I. Billinghurst ii. 345 u. Birdbrooke . . . . i. 636, 637 0. Bourton ii. 642 V. Bradford ii. 642 V. Bradshaw i. 492 V. Brampton i. 648 V. Burbach i. 665 V. Burton-on-Trent . . . ii. 346 0. Butterton i. 400 V. Byker i. 636 V. Carter i. 149 V. Christ's Parish, York . i. 637 V. Clare i. 636 u. Cotton i. 466 f. Cox ii. 755 u. Dedham i. 637 V. Dodd i. 145 V. Dodderhill .... i. 637 V. Elstack i. 637 V. Farleigh Wallop . . . i. 636 V. Gt. Bowden .... i. 637 V. Gt. Yarmouth . . . i. 636, 637 u. Hales Owen .... i. 657 V, Halesworth . . . . ii. 641 V. Hampresten .... i. 637 V. Hanbury i. 637 V. Haughley 1. 149 V. Herstmonceaux . . . i. 401 V. Hull i. 605 V. Humphrey i. 621 V. Islip .... . . i. 649 V. Ivens i. 464 V. Keynsham . . i. 656; ii. 642 u. Lambeth . . . . i. 637 V. Lidney . . . . i. 636 Ixxvi INDEX OF ENGLISH CASES. Rex l: Long Buckby ii. 621 t. Longnor . . i. 656 0. Londontliorpe . . . . i. 392 V. Louth . . . . ii. 614, 615 V. Lyth . ... i. 033 V. Marsh. . . . ii. 366 V. Mitcham i. 637 V. Netlier Knutsford i. 655 u. New Windsor . i. 036 V. Newton Toney . . i. 037 V. Northwingiield ii. 765 V. Northwold . , . i. 636 V. Odiliam . . i. 037 r. Otley i. 3! 12 0. Poleswortli .... 1.649 V. Pueklechurch . i. 634, 037 V. Ridgwell .... ii. 628, 660 V. Rolvenden . . . i. 037 u. St. Andrew, Pershore i. 637 V. St. Catli. Dock Co. . i. 240 V. St. Mary, Guildford . i. 033 V. St. Matthew's, Ipswich i. 637 u. St. Petrox . . . ii. 612 V. Sandhurst . . . i. 630 V. Sankey . . i. 686 V. Scammonden . i. 336 0. Seaton i. 634 c. Shingfield . . 1.665 V. Skeffington . . ii. 611 V. Sow . . i. 633 V. Stokesley 1.633 c. Sudbrooke . . . i. 660 u. Topping . . . 1.405 V. Warminster i. 037 V. Weeks ii. 614 V. Welford . . 1.048 0-. WeyhiU .... i. ()33 V. Whitnash . . . ii. 756 V. Wilson . . . i. 429 V. Wishford . . i. 056 u. Wroxton . . . ii. 345 V. Younger . ii. 755 Reynell v. Lewis . . . . i. 178 V. Sprye . 11 722 Reyner v. Pearson . ii. 145 Reynolds v. Bridge . . . . 11. 689 V. Doyle . . ii 591, 877 V. Jex . . i 104, 725 V. Nelson .... ii 400, 791 V, Prosser ii. 899 V. Waring .... ii 370, 371 V. Wheeler .... ii 108, 587 Rhadamanthe, The . . ii. 73 Rhodes v. Forwood . . . . i. 308 V. Smethurst .... . ii. 875 V. Thwaites . . . ii 443, 455 Ribeyre, La Marquise de, v. Bar- clay .... . . 1. 5.38 Rice V. Baxendale .... 1. 821 V. Chute . . . i. 124 V. Rice .... ii. 45 V. Shepherd . . . 1. 223 Rich V. Aldred . . . . . 1. 625 V. Coe . • . i. 105, 121 V. Jackson . . 1. 325 .. PierDont .... . . i. 601 Richards v. Borrett . . . . 11.39 c. Browne .... . 11. 930 f. Lond., Brigliton, & S. Coast Ry. Co. 1. 774, 775, 795, 828 V. Porter . . ii. 431 V. Revett . . 11. 709, 711, 712 I. Richards . . . i 211; 11. 361 V. Symons .... . . ii. 65 Richardsoti, Ex parte . . ii. 77, 78 V. Barnes . . . . ii. 787 V. Barry . . . . ii. 883 V. Brown .... . . ii. 524 !■. Cartwright . . . . i. 100 1 . Chasen . . . . ii. 404 V. Du Bois . . . . . i. 236 !•. Dunn . . i 122 ; ii. 680 V. Gifiord . . i. 284, 383 V. Goss . . i 621 ; ii. 493 r. Gt. East. Ry. Co. i. 739, 752 ,.. Hall . i. 375 V. Jackson . . . . . ii. 826 V. Langridge . . . i. 354 V. Lend. Ass. Cpii . ii. 150 c. Mellish . p^ 11. 729 ( . Met. Ry. i. 754 ,j. North-East. Ry. Co . i. 756, 782 V. Smith . , .|.. V. Williamson . JK ii. 704 i. 121, 123 V. Willis . . . . . ii. 586 l: Young . . . . ii. 21 Richmond r. Coles . . . . ii. 758 V. Smith . . . . 1. 457 Ricketts v. Bennett . . . i. 169 V. Weaver . . h. 918 Rickford )•. Ridge . . ii. 249 Rickman c. Carstairs . . ii. 148 Ridgway v. Hungerford Market Co . . i. 652 V. Lord Stafford . . i. 497 V. Wharton i. 89, 274 275 ; ii. 703 Ridley f. I'lym., &,c. Bank ng Co. i. 163 ti. Ridley . i 273; ii. 699 V. Taylor .... i. 1.39 Ridout !•. Bristow . . . . 1. 207, 338 Ridsdale v. Ncwnham 11. 128 Rich V. Woolley . . . . . i. 493 Rigby V. Connol . . . . . ii. 739 Rigge V. Burbidge . . i 581 ; ii. 481 Riggles V. General Interest Ins. Co ii. 133 Right V. Beard . . . . i. 355, 413 !■. Cuthell . . . i. 412,414 V. Darby .... . . i. 412 ;;. Proctor .... i. 344 Rigley v. Dakin . . . ii. 583 Riley v. Baxendale . . . i. 638, 640 V. Home . . . . . i. 760 u. Packington . . . . . i. 177 INDEX OF ENGLISH CASES.. Ixxvii Riley v. Warden ii. 760 Rimell v. Sampayo i. 99 Uingland v. Lowndes .... i. 242 Iliiiguist V. Ditchell .... i. 110 Ripley v. Lordan i. 676 V. M'Clure . . i. 307 ; ii. 798, 830 1-. Scaife i. 722 Rippon V. Norton i. (32 l{isl)ourg V. Bruckner . . i. 82, 688 Risney v. Selby ii. 516 Ritcliie !'. Atkinson .... i. 721 0. Smith . . . i. 442 ; ii. 728, 75-3 llivaz r. Gerussi , . . ii. 117, 130 Rivers v. Griffitlis . . . . ii. 825 Rivington's Case ii. 289 Robarts v. Robarts . . . . ii. 881 V. Tucker . . . . i. 544, 519 Robbins v: Fennell . ii. 594, 603 u. Heatli ii. 603 Roberts, Ex parte ... ii. 319, 950 In re . ii. 674 V. Barker .... i. 331 V. Berry , ii. 403 V. Brett . . . i. 303, 583; ii. 790 V. Cro£t ii. 45 u. Crowe ii. 305 u. Hardy i. 237 V. Havelock i. 574 V. Massey ii. 406 V. Rose . ii. 652 V. Smitb . . i. 570, 643 ; ii. 5S2 V. Tucker . . . i. 272, 538, 54!) u. Wallier ii. 937 V. Walking . . . . i. 577 V. Williams ii. 24 V. Wyatt .... ii. 377, 832 Robertshaw v. Bray . . . ii. 418 Robertson v. Adarason . . i. 642 V. Amazon Tug Co. . . ii. 508 f. Rwer . ii. 121 V. Fauntleroy i. 63 V. French ... i. 231 ; ii. 121 V. Jackson . . . . . i. 723 V. Kensington . . ii 219 V. Lockie ... ii. 832 V. Morris . . ii. 347 V. Waite ii. 670 Robins v. Bridge . . . . i. 121 V. Evans ii. 396 V. Goldingham .... i. 684 V. May ii. 244 Robinson v. Anderton . ii. 543, 594 V. Bland i. 315 V. Chartered Bank . . . ii. 289 V. Cox ii. 717 V. Davidson . . ii. 35, 802, 861 V. Dunmore .... i. 745 V. Ferreday ii. 826 V. Gt. West. Ry. Co. i. 750, 784, 789, 792 V. Harman . . i. 448: ii. 670 Robinson v. Hawksford . . . ii. 240 V. Hindman i. 648 V. HoKman i. 472 V. Knight i. 721 V. Learoyd i. 426 V. Litton ii. 20 1). Lyall i. 103 V. Macdonnell ii. 633 V. Mearns ii. 600 V. MoUett i. 332, 670 V. Musgrove ii. 395 V. Nalion i. 227 V. Price i. 735 V. Read ii. 817 V. Rutter i. 113 V. S. West. Ry. Co. . i. 762, 776 o. Touray .... ii. 117, 619 V. Turpin . .... i. 717 u. Waddington .... i. 496 ... Wall ii. 367 V. Ward i. 546, 609 Robinson's Case ii. 305 Robison v. Goswold .... i. 221 Robson V. Drummond . . i. 129, 589 u. Eaton ii. 596 V. Godfrey i. 586 u. N. East. Ry i. 754 V. Oliver ii. 233 Rock V. Leighton ii. 928 Rocke V. Hart i. 546 Roden v. Eyton i. 489 Rodger;;. The Comptoir d'Escomte de Paris . . . ii. 489, 495, 896 Rodgers v. Maw ii. 589 V. Parker . . . i. 498, 499, 504, 508 V. Price ii. 580 Rodocanachi v. Elliott . . ii. 144 Rodwell V. Phillips . . . i. 259, 260 Roe V. Davis . . . . . i. 432 u. Galllers . i. 405 V. Harrison . . . . i. 360, 361 V. Hayley .... ii. 903, 909 !i. Paine i. 405 V. Pierce i. 414 V. Soley ii. 32 V. Street i. 423 Roelandts v. Harrison . . . i. 719 Roey & Co. v. Oilier . . . . ii. 257 Roffey V, Greenwell . . . . ii. 672 V. Henderson i. 440 Rogers v. Bochim 1. 661 V. Grazebrook ii. 8, 10 0. Hadley .... ii. 328, 335 V. Head i. 707, 744 V. Humphreys ii. 15 V. Ingham .... ii. 592, 593 V. Kingston ii. 726 u. Kingston -upon -Hull Dock Co i. 416 V. Langford . . . . ii. 785 V. Macarthey ... .11. 116 Ixxviii INDEX OF ENGLISH CASES. Roffers's Case . . . i. 41 Eohde V. Thwaites . . ii. 443 Kohl V. Pair . . . i. 782 ; ii. 175 Rolfe V. Abbott . . i. 196 V. Peterson i. 400; ii. 688 Rolin V. Steward . . . i. 543, 50:j Rollason i;. Leon . . . . i. 34:; T?nll9 jj Vntp ii 9.38 Rolph V. Croueli . . . . ii. 680 Rome V. Young . . . . . ii. 44 Rondeau v. Wyatt . . . . ii. 372 Ronniburg v. Falkland Islands Co . ii. 681 Rookwood's Case . . . i. 61 Roose, In re . . ■ ■ . i. 260 Rooth V. N. East. Ry. Co . i. im V. Wilson . . . i. 560; !!. 62 Roots V. Dormer, Lord . ii. 368, 443 Roper V. Bumford . . . . ii. 806 V. Coombes . . . . . ii. 404 V. Holland . . . . . ii. 606 V. Johnson . . ii. 478 V. Lindon . . . ii. 193, 723 u. Williams . . ii. 709, 712 Rosario, The . . . i. 568 Roscorla v. Thomas . . ii. 506 Roscow V. Corson . ii. 145 Rose V. Main . . . . ii. 72G V. N. East. By. . . . i. 754 u. Poulton . . . . . i. 67 V. Savory . . . . . ii. 609 V. Watson . . ii. 44, 406 Rosenberg v. Cook ii. 374 Rosetti V. Gurney . ii. 167, 173 Eosevear Clay Co., Ex parte ii. 476, 489, 490 Rosewarne v. Billing . ii. 749 Rosewell v. Vaughan . ii. 422, 502 Ross V. Bradshaw . . . ii. 204 . . . i. 619 V. Hill .... . i. 744, 746 V. Hunter . . . . ii. 145 V. Moses . . . ii. 5.3, 556 Rosse V. Bramstced . . . i. 463 Rosseter t'. Cahlman . . i. 318 ; ii. 749 Rossiter v. Miller . i. 38 Roswel V. Vaughan ii . 419, 422, 502 Rosyer v. Langdale . . i. 23 Rotch V. Edie . . ii. 143 Rothery v. Munnings . . ii. 884 Rothschild r. Currie . . . ii. 264 Rotliwell V. Humphreys . i. 521 Round V. Bell . . . . . ii. 869 Rouquette v. Overnan . . ii. 264 Rourke v. Short . . . . . ii. 746 Rousillon V. Rousillon ii. 585, 738 Routh V. Macmillan . . . i. 97, 698 Routlege v. Burrell . . . . ii. 127 V. Grant . i. 38, 40 I). Ramsay .... . . ii. 883 Roux V. Salvador ii. 162, 175 Eowcroft V. Lomas . . . . ii. 883 Rowe V. Pickford ii. 492 V. Tipper ii, 235 o. Wood ii. 23 V. Young ii. 226 Rowlands v. Evans . . ii. 280 V. Springett . . . . ii. 2.30 Rowley v. Adams . . ii. 926 Roxburghe v. Robertson . . . i. 3.31 Roy V. Beaufort, Duke uf . ii. 683 Royal Arch, The ii. 70 Royal Bank of Scotland c. Cuth- bert . ii. 867 Royal Brit. Bank, In re . ii. 296, .300 V. Turquand . . . . i. 160, 522 Royal Ex. Ass. Co. v. M'Swiney ii. 148 Royce v. Charlton . . i. 657 Rubery v. Stevens ii. 925 Rucker v. Cammeyer ... i. 281 Ruckmaboye v. Mottichund . ii. 891 Ruddock V. Lowe i. 601 Rudge V. Bowman ii. 565 Tiui\o\\>\\, Ex parte ii. 565 RufFey v. Henderson . . . . i. 396 ; ii. 551 Rugg r. Minett . . ii. 454, 458 V. Weir . . . ii. 471, 5.33, 710 Rumball v. Ball . ii. 228, 795 V. Metropolitan Bank . ii. 248 Rummens r. Robins . . . . ii. 412 Eumsey f. George . . i. 30; ii. 941 V. N. E. By. Co. . i. 565, 774, 775 ; ii. 576, 583 Runger v. Gt. West. Ry. Co. . i. 578 Runquist !•. Ditchell .... i. 100 Ruppell V Roberts . . i. 85 Rusby V. Scarlett i. 99 Rusden v. Pope . . . . ii. 67 Rushbrook v. Hood . . . ii. 614 Rushforth r. Hadfield . . i. 619, 801 Russell, £x parte . . . ii. 866 V. Bangley . . . . . ii. 815 V. Bell ii. 947 V. Harford ii. 552 I/. Langstaffe ii. 217 u. Lee i. 197 u. Reece i. 120 V. Russell ii. 40, 280 ;;. Sa Da Bandiera . . i. 583,-586 V. Thornton ii. 132 Rust V. Nottage i. 632 Rutherford's Case . . . ii. 571, 889 Buttinger v. Temple . . . i. 26, 202 Ruvigne's Case . . . . ii. 288, 298 Ryall V. Rich i. 427 V. RoUe ii. 3 c. Rowles . . . . ii. 1, 503 Ryan v. Sams . . . i. 227 u. Shilcook . . . . i. 474 V. Thompson ... . i. 502 Ryder v. Wombwell .... i. 198 Rylands v. Kreitman ii. 466, 474 INDEX OF ENGLISH CASES. Ixxix Sadler v. Belcher i. 540 u. Dixon ii. 125 u. Evans i. 125 ( . Johnson .... . ii. (ilti V. Nixon ii. 277 V. Robins ii. 586 Sadler's Case ii. 305 SaSery , Ex parte . . i. 670; ii. 726 Sahlgreen's Case . . . . ii. 568 Saint Albans, Duke of, v. Ellis i. 300 V. Shore ... i. 187 ; ii. 398 Saint Aubyn v. Smart . . . i. 536 Saint Auby's Case . . . ii. 46 Saint Cloud, The i. 106 Sainter v. Ferguson . . ii. 690, 739 Saint George v. Walse . . . ii. 331 St. George's Ben. Build. Soe., In re ii. 290 St. James's Club, In re . . . ii. "290 St. John, Ld., v. Lady St. John ii. 353, 354 St. John's College v. Murcott . i. 481 St. Saviour's, Wardens of, v. Bos- tock ii. 87 Sale V. Lambert i. 276 Salisbury v. Met. Ry. Co. . . ii. 290 Salford, Mayor, &c. of, i'. Ackers i. 577 Salmon v. Ward ii. 5rj V. Watson .... ii. 549, 605 Salomons v. Laing ii. 307 V. Pender . . . i. 6B-5 ; li. 780 Salop V. Crompton . . . . i. 384 Saloucci V. Johnson . . . ii. 129 Salter v. Kidgeley i. 72 V. WooUams ii. 465 Saltmarshe v. Hewett . . . . ii. 737 Saltoun V. Houston . . . i. 296 Salvador v. Hopkins . . . . ii. 1.36 Salvin v. James . . . . . ii. 194 Sampson v. Easterby i. 296, 300; ii. 910 Samuel v. Green i. 89 u. Royal Ex. Ass. Co. . ii. 151 Sandeman v. Scurr .... i. 106 Sander's Case ii. 210 Sanders v. Guard. St. Neots . i. 154 V. Rodway .... ii. 353, 701 V. Sanders . . . . ii. 21, 870 V. Spencer .... . i. 460 V. Vanzeller .... i. 724 Sanderson v. Aston ... ii. 95 V. Bell i. 688 V. Graves i. 327 V. Piper i. 296, 297 V. Symonds ii. 856 Sanderson's Case ii. 303 Sandiland v. Marsh . . . . ii. 113 Sandiman v. Breach . . . . ii. 756 Sandon v. Hooper ii. 23 Sands v. Clarke ii. 233 Sanger v. Sanger ii. 944 Sanguinetti v. Pacific St. Nav. Co. 1.731 Sankey Brook Coal Co., Ee . i. 158 Sansom v. Rhodes ii. 375 Sappho, The i. 568 Sapsford v. Fletcher . . . . ii. 589 Sard V. Rhodes ii. 807 Sargent t>. Morris . . . i. 112, 816 V. Wedlake ii. 836 Sari V. BourdiUon . i. 276, 27'J ; ii. 430 Sarquy v. Hobson . . . ii. 139 Sauer v. Bilton . . . i. 379, 385 Saul V. Jones .... ii. 232, 250 Saunders v. Dehew .... ii. 35 V. Drew i. 719 V. Johnson ii. 275 V. Milsome ii. 867 V. Musgrave i. 353 u. Taylor " ii. 87 V. Topp ii. 434 V. Wakefield ii. 364 ' Saunderson v. Jackson . i. 281 ; ii. 430 Savage v. Aldren ii. 875 v. Foster ii. .387 Savill V. Barchard i. 619 Saville V. Campion . . . i. 694, 722 V. Robertson i. 136 Sawtell V. Loudon . . . . ii. 132, 619 Sawyer v. Mawgridge . . . i. 303 I). Mercer ii. 928 Say V. Barwick . . . . . ii. 413 S.ay, Lord, and Sele's Case . i. 297 Sayer v. Chaytor . . . . i. 80 V. Wagstaff ii. 806 Sayers v. Lond., Birm., Flint, &c. Co ii. 513 Sayles v. Blane . . . ii. 561 Scadding v. Eyles . . . ii. 606 Scaife V. Farrant . . i. 746, 765 Scaltock V. Harston .... i. 241 Scammell v. Wilkinson . . . ii. 933 Scaramanga v. Stamp . . ii. 157 Scarborough, Mayor of, v. Butler i. 155 Scarfe v. Morgan . . i. 588, 613, 616 ; ii. 756 Scarpelini v. Atcheson i. 211 ; ii. 361 Schack V. Anthony . . . . ii. 857 Schibsby v. Westenholtz . . ii. 585 Schilizzi V. Derry i. 703 Schloss V. Herriot . . i. 709, 734, 737 Schraaling v. Tomlinson i. 078 ; ii. 894 Schmalz v. Avery . i. 82, 111, 114, 122 Schneider v. Forster . . ii. 465 V. Heath . . . i. 94; ii. 515, 540 V. Norris i. 281 Scholefield v. Lookwood . . . ii. 23 V. Robb ii. 521 Scholey v. Ramsbottom . . i. 544 V. Walton ii. 890 Schotmans v. Lane. & York. Ry. Co ii. 489 Schrieber v. Creed ii. 712 Schroeder v. Central Bank . . ii. 897 Schultz V. Astley . . . . ii. 217 Ixxx INDEX OF ENGLISH CASES. Soio, The ii. 68 Scorell V. Boxall i- 259 Suothorn v. South Staff. Ky. Co. i, 796, 797 Soot. Marine Ins. Co. v. Turner ii. 105 Scotland, Koyal Banlt of, v. Cuth- bert ii._867 Scotson I'. I'egg . ... i. 16 Scott V. Averv ... . ii. 724 V. Bourdillon i. 291 V. Craig i. 644 V. East. Count. Ry. Co. . ii. 443 V. Ebury, Lord . i. 160, 170 V. England .... ii. 454 0. Gilmore . . ii. 751, 705 V. IJanson . . . . ii. 396 V. Irving . . . . . ii. 136 V. Littledale . . . . ii. 782 u. Liverpool, Corporation nf i. 577, 578; ii. 724 V. London Dock Co. . i. 743 V. Miller ii. 723 V. Nixon .... . . ii. 382 u. Parker . . ii. til 1. Pettit ii. 492 V. Pilkington i. 315 ; ii. 585, 860 V. Rayment ... ii. 272, 700 V. Scott . ii. 337 u. Spashett ii. 836 V. Thompson ii. 156 V. Tyler i. 203 V. Uxbridge & Rickmansworth Ry. Co ii. 826 Scottish N. E. Ry. Co. u. Stewart i. 155 ; ii. 698 Scout, The i. 568 Scrimsliire v. Alderton ... i. 83 Scrivener v. Pash i. 575 Scurfield v. Gowland . . . ii. 598 Sea. Ins. Co. v. Gavin . . . ii. 161 Seaborne v. Maddy . . . . i. 26 Seago u. Dean . . . i. 258; ii. 606 Seagood v. Meale ii. 364 Seagram v. Knight . . . . ii. 892 Seagrave v. Seagrave . . ii. 355, 701 Seagreave v. Union Marine Ass. Co ii. 118 Sealtock !>. Harston .... i. 383 Seaman v. Ponerau . . . . ii. 130 V. Price .... i. 18, 258, 268 Sear v. House Property Soc. . i. 361 Scare v. Prentice . . . . i. 590, 601 Searle v. Keeves ... . i. 203 0. Laverick i. 527 V. Lindsay i. 638, 644 Seaton v. Benedict .... i. 215 Seddon v. Senate ii. 579 V. Tutop ii. 859 Seegar v. Duthie i. .305 Seeling v. Crawley . . . . ii. 354 Seignior and Wolmer's Case . . i. 82 Selby V. Greaves . . . . i. 452, 464 Selby V. Pom fret . . ... ii. 33 Sellar v. M' Vicar . . . . . ii. 155 Sellen v. Norman . . . . . i. 653 Seller v. Jones . . . ii. 90 Sellers v. Bickford . . . . ii. 833 Sellick V. Trevor . . . ii. 378 Sellin V. Price . . . . . i. 48 Sells !'. Hoare . . . . i. 504 Selway i'. Fogg . i. 583, 771, 777 V. Holloway . i. 826 Semenza v. Brinsley . . i. 82; ii. 814 Semple v. Steinau . . . . ii. 653 Senior v. Ward . i. 63 9, 640, 641, 643 Sentance v. Hawley . . ii. 591 V. 1*0016 . . . . . i. 231 Sergeson v. Sealey . . i. 235 Servante v. James . . . . . i. 76 Seton I'. Slade . . i, 276; ii. 872 Severn v. Clerk . . . . ii. 422 Severn & Clerk's Case . i. 301 Sevier v. Greenvvay . . ii. 17 Sevin v. Deslandes . ii. 708 Seymour v. Gartside . ii. 322 V. Maddox . . . i. 639, 642 Shackell v. Rosier . . . ii. 717 Shackleton v. Siitcliffe . . ii. 392 Shadforth v. Cory . . . i. 7.30 V. Higgin . . i. 697 Shakleford's Case .1.41 Shand i: Grant . i. 1' iO ; ii. 595, 603, 609 V. Sanderson . . . . i. 725 Shardlow v. Cotterell . . i. 276, 276 Sharington c. Strotten . . . . i. 46 Sharman v. Sanders . . . . ii. 760 V. Brandt . . . . . i. 281 Sharp V. Bailey . . ii. 239 V. Cummings . ii. 274 ('. Grey . . . i. 739 V. Milligan . . . . i. 181 Sharpe v. Foy . . ii. 387 D. Gibbs .... ii. 857 Sharpies v. Adams . . . . ii. 35 . . . ii. 660 Shattort r. Shattort . . . i. 219 Shaw V. Burney . . ii. 31 V. Chairitie . . . . i. 648 V. Dartnall . . . . . ii. 595 V. Fisher . . . . . . ii. 574 V Foster ii 39 418 V. Holland . . ii. 479, 480 . . . i. 381 V. Picton . . . i. 596, 609, 821 V. Pritchard . . . . . . ii. 73b V. Robberds . . . . . . ii. 189 . . .11. 565 V. Sherwood . . . . i. 67, 76 V. Stenton . . . . . i. 359 V. Thackray . . . . . . i. 231 V. Woodcock . . . ii. 595, 596 V. Worcester, Lord . . . ii. 684 Shears i. Jacob . . . . . i. 162 INDEX OF ENGLISH CASES. lxx> Shee V. Clarkson i. 669 Sheerman !i. Tliompson . . . ii. 7t)4 Sheffield & Maiicli. lly. Vo. v. Woodcock i. 72 Sheffield Nickel Co. v. Uiiwiii . ii. 778 Sheffield's Case ii. 206 Shelbury v. Scotsford . . i. 53.3, 625 Sheldon v. Brett ii. 736 Shelton v. James ii. 0(il V. Livius i. 324 V. Pendleton i. 223 V. Springett .... . i. 26 Shepard c. De Bernales . i. 723, 724 Shcpliard v. Elliott . . ii. 23 Shfepherd v. Allen ... . ii. 279 V. Bristol & Exeter Ry. i. 794 u. Chewter .... . ii. 181 „. Hills ii. 873 u. Hods man .... i. 283, 8.57 !). Johnston . . . . i. 523 V. Kain . . . . ii. 461 V. Keatley ... . . ii. 385 V. Mackoul i. 222 V. Pybus . . . . ii. 511 Shepherd's Case . . . . . ii. 567 Shepley v. Davis . . . ii. 448, 484 Sheppard v. Duke .... ii. 868 V. Shoolbred ii. 542 Shepperd v. Kottgan . . . i. 734 Sheridan v. New Quay Co. i. 626, 826, 829 Sherrington v. Yates i. 211 ; ii. .361, 941, 9.50 Sherwood v. Robins . . . . ii. 395 Shiells V. Blackbiirne i. 558, 559, 561 Shilcock V. Passman . . . . i. 697 Shilibeer v. Glyn . . . i. 543, 556 Shilling V. Accidental Death Ins. Co ii. 199 Ship y. Crossbill . . . . ii. 317, 320 Ship's Case ... . . ii. 2i)6 Shipley v. Marshall . . ii. 950 Shipman's Case . . . ii. 5B9 Shippey v. Derrison . . . ii. 365 Shipton Industrial Society i'. Cas- son ii. 851 V. Thornton . . i. 707 ; ii. 153 Shirley v. Stratton . . . ii. 426 ShirrefE v. Wilks i. 139 Shore v. Wilson . . . i. 294, 296 Short V. M'Carthy ii. 879 0. Simpson ... . . i. 737 u. Spackman i. 113 V. Stone . . . ii. 325, 791 Shove V. Webb ii. 598 Shrewsbury v. Blount . . . . ii. 523 Slirewsbury, Countess of, v. Crompton i. 398 Shrewsbury, Earl of, v. Gould . i. 303 V. N. Staff. Ry. Co. . . . i. 160, 165 Shrewsbury's, Lady, Case . . i. 384 VOL. III. Shrewsbury & Birra. v. Lond. & N. West. Ry. Co. . . . i. 165 ; ii. 740 Shrivell v. Payne ii. 661 Shroder i;. Ward i. 512 Shropshire Union Ry. Co. u. The Queen ii. 555 Shubrick i). Salmond .... i. 46 Shutford V. Borougli . . . . ii. 875 Shuttleworth, £2:pu?'(e . . . ii. 241 V. Hernaman ii. iJ'A Sibbald v. Hill .... ii. 130 Sibley V. Fisher . . . . . ii. 2-54 Sibree v. Tripp ... . . ii 850 Sibthorp u. Brunei i. 307 Sichell V. Lambert ii. 344 Sichell's Case . . . . ii. 568 Sickens v. Irving . . . . i. 703 Sieklemore v. Thistleton . . . ii. 795 Sidaway v. Hay ii. 867 V. Todd ii. 196 Sidman v. Worthington ... i. 22 Sidney Sussex College v. Daven- port i. 149 Sidwell V. Mason ii. 881 Sieveking v. Dutton . . . . ii. 468 Sievers n. Boswell . . . ii. 598 .Siorewright v. Archibald . ii. 432 Siffkin !,'. Walker . . . ii. 274 Siggers V. Evans ... ii. 861 Sigourney v. Lloyd . . . . ii. 219 Sill w. Worswick ii. 947 Sillem r. Tliornton ... . ii. 188 Sim V. Anglo-American Tel. Co. ii. 572 Simeon !'. Biizett ii. 145 Simmonds v. Gt. East. Ry. Co. i. 686 u. S. East. Ry. Co. . . . i. 824 Simmons v. Gutteridge . . ii. 9.35 c. Simmons i. 257 V. Swift . . . . ii. 450 v. Wilniot .... i, 185 Simms v. Marryatt ii. 503 Simon v. Lloyd ii. 807 Simond v. Braddon ii. 460 Simonin v. Mallac . . . . ii. 347 Simons w. Gt. West. Ry. Co. i. 785, 786, 787,789,828; ii. 775 0. Patchett .... i. 121, 689 V. Rose i. 594 Simpson v. Ace. Death Ins. Co. ii. 194, 205 V. Clayton . . . ii. 900, 913 V. Crippins ii. 831 V. Eggington . . ii. 811 0. Fogo . . . ii. 586 V. Hartropp .... . i. 476 , V. Henning ii. 866 V. Lamb . . . . i. 572, 671, 681 V. Lond. & N. West. Ry. i. 821 y. Nichols ii. 756 t: Penton ii. 81 V. Routh ii. 795 V. The Scottish U. Ins. Co. ii. 198 Ixxxii INDEX OF ENGLISH CASES. Simpson y. Thompson . . . . ii. 196 V. Titterell i. 302 V. Westra. Palace Hotel Co. ii. 289 Sims V. Bond . i. 86, 130, 538 u.Brittain . i. 86, 545, 674 V. Brutton . ii. 87y Simson v. Cooke . . . . ii. 90 V. Ingliam . . . ii. 820, 83:; V. Jones ii. 333 Sinclair v. Bowles ... i. 573 V. Maritime Pass. Ass. Co. ii. 211 Siner v. Gt. West. Ky. . . . i. 754 Singer Manufac. Co. v. Clarke ii. 64 Siordet !-. Hail i. 710 Si.x Carpenters' Case . . . i. 488 Sjoerds v, Luscombe . . . . i. 703 S'kaile v. Jack«on i. 338 ; ii. 813 Skeet V. Lindsey . ii. 883 Skelton v. Cole . ii. 304 V. Ruskby . i. 187 r. Springett . . . . i. 203 Skillett V. Ffetcher . . ii. 89 Skinner v. Lambert i. 168 V. Lond., Brigliton, & S. Coast lly i. 742 V. Sti.cks i. 129 Skipp V. E. Coast liy. Co. i. 639 Skipwith V. Green . . i. 348 Skrine v. Elmore . . . ii. 640 Skyring r. Greenwood . ii. 595, 609 Blade's "Case . ii. 858, 9.-;7 Slater, Ex parte . . ii. 658 V. Baker . i. 590, 601 u. Jones . . . ii. 805 V. Le Feuvre . . . . ii. 489 Slater's Trust, In re i. 201 Slatterie v. Pooley . . i. 506 Sleat V. Fagg ... . i. 822 Sleddon v. Cruikshank . , . i. 391 Sleeman v. Barrett ... . ii. 700 Sleep V. Newman . . . ii. 926 Slim V. Gt. North. Ry. Co. i 792, 827 Slingby's Case i. 7-3 Slipper V. Tottenham Junction Ry. Co . . 'ii. 803 Sloman v. Cox . . . . ii. 2.'J4 11. Bank of England . ii. 571, 572 Sluhey v. Ha3'ward . . . ii. 495 Small V. Currie . . . . ii. 106 V. Gibson ii. 123 V. Marwood .... i. 68 Smallcorabe's Case . . . . i. 101 Smalley v. Hardinge . . . . ii, 957 Smart v. Guard. West Ham Union i. 153, 182 u. Harding i. 2-57 V. Jones . . i. 2.55; ii. 561, 652 V. Nokes . . . . ii. 620 V. Sandars . . . . i. 663 ; ii. 59 Smeathman v. Bray .... ii. 29 Smeed v. Foord ii. 677 Smethurst v. Mitchell .... i. 88 Smethurst v. Taylor Smith, £.r parte . . . V. Accident Insur. Co V. Algar . a. Anderson f. Arnold . 0, AshCortli V. Aykwell V. Bank of Scotland V. Barrow . . ( . Battams . . . (. Bond . 1. Boutclier (;. Braine . v. Bromley !'. Cator . t'. Chadwick ( . Chance u. Cherril . i\ Clarke . r. Cologan I'. Compton I . Cook . r. Craven 0. Cuff . r. Dearlove V. E. I. Co. V. Eldridge r. Forrand 1 . Forty . . <■. Goldsworthy r. Goodwin . . i. 100 . . ii. 40 ii. 212 . . i. 30 ii. 267 . . ii. 910 i. 489, 604 . . ii. 322 . . ii. 95 . . ii. 278 . . ii. 847 . . ii. 684 i. 078, 679 . . ii. 223 ii. 598, 601 . . ii. 646 ii. 517, 772 ii. 470, 473 ii. 335 i. 423 . . i. 668 . ii. 425 i. 560, 608 i. 136, 622 ii. 590, 598, 601 . i. 464, 461 ii. 833 . . i. 377 . ii. 817 . ii. 887 i. 168 491 . Gov. & Co. Bank of Scot. ii. 105 V. Green . . . . . ii. 37, 679 c. Home . i. 770 I.Howell. . . i. 446; ii. 112, 671 , . Hudson . ii. 435, 430, 437, 441 V. Hughes . . ii. 538, 773 r. Hull Glass Co. . . . i. 162 I. Humble . . . . i. 371 I . Hunt . . . . i. 77 . . Jackson ii. 407, 418 c . Jameson i. 537 ; ii. 819 V. Jarves . ii. 260 r. Jeffryes . . . . i. 324 ! . K.ny . . . . ii. 771 h. Kingsford . . . i. 650 L-. Knight & Co. . . ii. 290 V. Lascelles . . . i. 668 c. Lindo . . . . ii. 589, 758 < . London & Briglit. Ry. . i. 778 V. Lowe . . . . i. 196, 201 V. M'Guire .... i. 100, 738 V. Mapleback i. 464 V. Marrable .... i. 366, 447 V. Mawhood . . . . ii. 753 C-. Mercer . . ii. 600, 786, 808 (,. Moore i. 19 V. Mules ii. 279 r. Mundy . . . . i. 536 ; ii. 600 V. Myers . ii. 458 V. Neale . . . . i. 273, 274 INDEX OF ENGLISH CASES. Ixxxiii Smith V. Nicolls ii. 860 V. Peat . i. 445 V. Peters ii. 415 ». Plummer . . . . i. 723 V. Pocklington ii. 912 V. Pococlts . i. 550, 071 ; ii. 880 V. Render ... . i. 392 V. Reynolds . . ii. 118 u. Robinson . . . ii. 335 u. Russell i. 430 V. Scott .11. 137 V. Sieveking .... 1. 730, 731 ■ u. Simons . . . . . ii. 919 V. Sleap i. 80; ii. 597 V. Smitli . . . . i. 18, 31 ; ii. 352 V. Sparrow ii. 750 V. Siirman i. 260, 275; ii. 431, 438 V. Surridge ii. 147 V. Tliorne ii. 882 11. Twoart i. 375 u. Union Bank of London i. 553 V. Vertue . . . . . ii. 231 0. Walton . . i. 421; ii. 761 V. Watson ii. 272 V. Weathercroft . . . ii. 783 V. Webster . i. 254 V. Weguelin . . . i. 310 V. Westall . ... i. 273 <;. Wiiite . . . . ii. 718 V. Widlake i. 353 i). Wilson i. 833, 651, 722 ; ii. 810 V. Wriglit ... . i. 488, 492 Smoat V. Ilbery . . . . i. 90, 220 Smurthwaite v. Wiikins . . i. 737 Smyth V. Carter , i. 385 V. North .... . ; ii. 957 Snaith v. Mingay . . i. 319; ii. 217 Sneezum, In re ii. 955, 950 Snell, In re 1. 086 V. Finch i. 471 ; ii. 14 Snell's Case ii. 304 Snelling v. Huntingfield, Lord i. 272 Snook V. Davidson .... i. 683 Snow V. Leatham ii. 260 V. Peacock ii. 266 Snowdon, Ex garte . . . ii. 108, 878 V. Davis ii. 690 Soady v. TurnbuU . . . . ii. 933 Soames v. Edges ii. 700 V. Spencer i. 92 Soblomsten, The . . i. 707, 718, 721 Solarte v. Palmer ii. 236 Solly V. Forbes . . . . i. 288 ; ii. 835 Solomons v. Bank of England ii. 224 V. Dawes i. 624, 626 Somerset, Duke of, v. Cookson ii. 481 V. Fogwell ii. 551 Somerset's, Earl of. Case . . ii. 937 Somes V. Brit. Emp., &c. . , i. 587 Sondes, Lord, v. Fletcher . . ii. 672 Soprani v. Skurro i. 363 Sorsbie u. Park i. 75 i 335 . . i 277 1 426 ii. 384 580 . 11 846 . ii. 32 . 11. 046 Sotilichos V. Kemp Soucli V. Strawbridge Soulsby V. Neving . Souter V. Drake South, Ex parte . V. Blo.xam . V. Fincli .... South Australian Ins. Co. v. Han- dell 1.519, 530 South Carolina Bank v. Case . ii. 201 Soutli Sea Company v. Duncombe ii. 01 South York Rail. Co. v. Gt. North. ' Rail. Co i. 155; ii.308 South of Ireland Colliery v. Wad- dle i. 155, 159 Southall V. Rigg, &c ii. 251 Soutliampton, &c. Bridge Co. v. Southampton Local Board . i. 245 Southampton, Lord, u. Brown i. 05 Southby V. Wiseman .... i. 98 Soutlieomb v. Bishop of Exeter ii. 378, 413 Southcote's Case . . . i. 520 ; ii. 580 Southgate v. Bohn . . ii. 040 Southherne v. Howe . . ii. 538 Southwell V. Bowditch . . i. 117 Soward v. Palmer . . . ii. 850 Sowell v. Champion . . i. 508 Spackman v. Evans ii. 295 Spackman's Case . ii. 302 Spaeth v. Hare ... ii. 795 Spaight V. Cowne . ii. 104 Spain V. Arnott . . . i. 048, 062 Spalding v. Ruding . . ii. 495 Sparenburgh v. Bannatyne . i. 238 Spargo's Case ii. 299 Spark V. Heslop . . . ii. 80 Sparkes v. Marshall . . . ii. 118, 455 Sparling v. Brereton . . . . ii. 759 Sparrow v. Carruthers i. 717 ; ii. 153 u. Paris . ii. 090 0. Sowgate . ... ii. 105 Spartali v. Benecke . . . . ii. 500 Spears v. Hartley . . . . i. 613, 019 .443, 1,691 . i. 707 . ii. 832 ii. 3-4, 898 . ii. 863 Spedding v. Nevill Spence p. Chadwick V. Healey . . Spencer v. Clarke . p. Demett . . V. Durant ii. 275 Spencer's Case ii. 903, 910, 912, 915, 925 Spice V. Bacon i. 456, 460 Spicer v. Burgess V. Cooper . Spiller V. Paris Skatin, V. Westlake Spindler v. Grellett Spittle V. Lavender Splidt r. Bowles Spong V. Wright Spotswoed V. Barrow Ixxxiv INDEX 01' ENGLISH CASES. Spottiswoode's Case . Spragg V. Hammond . ypratt V. Hobhouse V. Jeffery . . . Spreadbury v. Chapman Sprott V. Powell . Spry V. Emperor . . V. Pigott. . , V. Porter . . . Spurr V. Cass Spurraway !•. Rogers . Spurrier v. Eldertoii . Squib !'. Wyn . . . Staekpole r. Earle . . V. Simon Stadhard or Stannard v. Lee 1. ii. 318 370 594 ii. 386 i. 215 i. 188 ii. 597 ii. 697 ii. 722 i. 85 ii. 609 i. 688 ii. 358 ii. 7S4 ii. 202 i. 577, 580 Stafford v. Clark . . . ii. 860 V. Gardner . . . i. 437 Stafford, Mayor of, v. Till . i. 151, 370 Stagg V. Elliott . . . . i. 174; ii. 258 Stainbank v. Kenning . . ii. 70 V. Shepard . . . i. 102; ii. 71 Staines v. Morris . . ii. 920 V. Wainwriglit . . . ii. 720 Stainton v. The Carron Co. i. 664 Staley i: Barrett . . . ii. 808 S tamers r. Preston . . . i. 283 Stamma v. Brown ... . ii. 140 Stamper v. Barker . . . . ii. 333 Standen i: Chrismas . i. 377 ; ii. 905 Stanhope, ^^ parte . . ii. 302 Stanhope's Case ... . ii. 302 Stanley v. Agnew ... i. 449 V. Hayes i. 357, 359 V. Bowdeswell . . i. 41 V. The Western Ins. Co. ii. 192 Stanly v. Jones ... ii Stannard v. Ullilhorn . i Stansfield r. Hobson . . i V. Mayor, &c. of Portsmouth ISA i. 596 ii. 21 i. 390, 440 i. 52 ii. 940 i. 140 i. 510, 097 ii. 483, 484 i. 04 i. 31 . ii. 477 Stanton ?'. Chamberlain r. CoUier V. Iron Co., In re . V. Richardson . . Stapleton, Ex parte . Starkie v. Mylne . . Starlyn v. Albany . . Startup V. Cortazzi . r. Macdonald ii. 463, 790, 793, 798 State Fire Ins. Co., In re . i. 171, 298; ii. 262, 264 Staton V. Brady i. 195 Staunton v. Wood . . i. 307 ; ii. 404 Staveley v. Allcock .... i. 472 Stavers v. Curling . . i. 304, 580, 099 ; ii. 794 Stead V. Dawber . i. 324, 327 ; ii. 463, 828 J-. Liddard . . . .i. 275; ii.015 Stead's Estates, iJipar. S. East. Ry. Co. . i. 764, 791, Van Wart v. Woolley . . . ii. Varley v. Coppard . . . i. Varney v. Hickman . ii. 600, 748, Vaughan v. Hancock .... i. V. Lemcke ii. Vaughton v. Brine . . . . ii. V. London & N. West. Ry. i 716 705 135 145 904 491 597 494 952 595 309 496 276 929 252 952 860 594 719 612, 792 671 360 768 257 744 656 781, Vavasseur v. Krupp Veitch V. Russell . Velasquez, The Venezuela Co. v. Kisch Venning v. Leckie Vere v. Ashby . . Vernon v. Smith . Vertue v. East Angl. V. Jewell . . Vesey v. Mantell . Vezian v. Grant Vice V. Lady Anson Vickers v. Vicker Victors V. Davies . Vincent v. Godson . &c. . i. 239 i. 570 i. 716 ii. 772, 774 ii. 275, 645 . ii. 259 ii. 193, 909 . ii. 894 . ii. 488 . ii. 275 . ii. 128 i. 142, 170 . ii 414 i. 22 . ii. 927 xc INDEX OF ENGLISH CASES. Vincent r. Going . . Vine V. Xlitfliell . . . Virany r. Warne . . . Virtue v. Bird . Visgor c. I'resc'Ott Vivian r. Clianipion i. 4i4 c. Jloat . Vlierboom o. Cha)inian . VonlioUen r. Knowies Vooglit i'. Wincli . . . Vorley v. Barrett . . . Vose V. Lane. & York. Ky. Voss, In re . . . Vrede, The ... Vyvyan v. Arthur . . . ii. 374 ii. 7:1(1 i. 570 i. H2:i ii. 1-l:i ',il'J,i)17 i. JO-j 719, 7:il ii. 402 ii. yf>!^ ii. )00 i. tilO, tilL' ii. 348, UJli . i. C67 ii. 000 Co, Waddell r. Bloekley i: Wiiltl- .... Wadiiilove r. Bariiett WaddingUm /•. Bristow i. 25! Wade i'. Sinioon Wade's Case .... Wadling I'. Oliphant . Wadswortli r. Guy V. Marshall . . . Wainman r. Kynman Wainw riulit r. Bland. i,'. Kanisden . . Wait t'. Baker . . . Waitlinian v. Wakefield Wake n. Harrop i. 74, 86, . ii. 478 . ii. ;iis5 . ii. 10 ); ii. 651 i. ;:o . ii. 824 11. ',15 114, 127, , 55.3, 501, Wakefield c. Brown , . . 1'. Newbon . Wakeman v. Lindscy . . !'. Kutland, Duchess of Waiburn v. Ingilby . , , Walcot V. Goulding . . Waldo V. Martin . . Walker v. Barnes . . . , V. Bartlett £/. Birch . o. Brit. Guarantee Ass, u. Butler . . . V. Chapman . . . V. Constable . V. Code . . . V. Gt. Western Ey. Co i;. Harris V. Hatton u. Hill .... C-. Hull . V. Jackson V. Jeffreys V. Jones . . a. Macdonakl u. Mottram . u. Neville . V. Nussey V. Perkins i. 744, . ii. 02:; , i. 5! 14 . 880, s^^8 ii. 2(i:; . i. :;ciO . ii. 4uO 214, 216 118. 124. 128, ;J20 i. 75 ii. 507 i. 400 ii. 410 . i. 145 ii. 084 . ii. 720 . ii. tJT.i 504, 640 i. 618 i. 608 ii. 880 ■ii. 700 , ii. 405 i. 420 i. 150 i. 307 i. 440 i. 270 ii. 02;! 701, 822 ii. 400 i. 27, ;!0 ii. 210 ii. 742 ii. 837 ii. 444 ii. 717 Co. ii. 661 i. 63 i. 270 ii. II i. 704 ii. 815 i. :i04 i. 45 ii. 484 . ii. 70 . ii. 040 ii. 5:;o ii. 818. 85;{ . i. 557 i. 621. Walker v. Roberts . . r. Kostron .... I'. Taylor . . ,'. Ware Kv. Go. i: York & N. Jlid. l?y. Wall r. Cockrell V. Hinds . Wair.s Case . . . Wallace •: lirocds . . . r. Fieldin . . . c. llardacre f. .larnian V. Kelsall . . i. 338 !'. Tellfair r. Woodgak' Waller i: Holmes V. 8. F.a.si. Ky. . . Wallis r. Harrison . !•. Llllrll . . c. Lond. & S. West. Ky. !>. 8r()|| Walls r. Alcheson .... A\'ahnesk'y v. Cooper r. Millie ... . i. Walsh r. Tussell . . AValsliain v. Slainton . WaUlie r. I'rovaii i. 85, 5:": M'alslab r. 18pottiswoode Walter r. Cubley . . 1. Hean ot Norwich . . . i. :108 r. Hnynes ii. 2:17 , 802 . i. 085 (■,:',0. 015 , ii. 348, 5,52 i. :!:»5 i. 801 ii. 705 i. 4 1 1 ii 837 76 . ii 728 . i. 070 2. 027, 674 ii. 315, ;!16 . ii. 010 ;!'0 ; V. .lallK'S I'. ISniith . Waller's Case Wallhew ('. iMa\ rojaiii Walloii. J-'.j- junif V. llasling.s . v. A\'alei house Walwyii ;'. Si. tluinlin Waiikford v. Waukfbrd . ii. 812 ii. 63, 8;i5 . ii ;!02 . i. 7:15 . ii. 057 . ii. r.20 . ii. 007 . ii. 2:'.0 i. :'.52, 0:!o, o::5, o:;6 AA'aniiell v. Adney . Waiisbonigli r. Malon Want v. Blunt . . . r. Stallibrnss . Wajiles r. Eaines . . Warburton v. tit. West. Ky. Co. i. 0:'>0, 645 !'. Ileyworth ... i. 653 i. 038 i. ;;o2 ii. 205 ii. :'.70 ii. 1.52 Ward, /'.'.r 11,11 li- . V. Beck r. Byrne V. Clarke . V. Day r. Evans c. Eyre . V. Hobbs . v. Lowndes . (). Luniley . ... Shallett V. Shew . i. 407 : ii. 560, 770 . . ii. 67 . ii. 737 . . i. 187 ii. 777, 700 . . ii. 815 ii. 674 . ii. 50:!, 5:10, 540 i. 181, 242, 244,246 . . . i. 442 ii. ;!:!0 i. 471 V. S. East. Ky. Co. . i. 24:5; ii. 570 INDEX OF ENGLISH CASES. XCl Ward V. Trathen ii. 387 Ward's Case ii. 568 Ward and Garfltt's Case . . ii. 668 Wardell v. Mourillyan . . . i. 795 «. Uslier i. 437 Wardens of St. Saviour's o. Bostouk ii. 87 Ware, In re i. 369 V. Grand June ii. 308 Warin v. Suott i. 237 Waring, Ex parte ii. 2-56 V. Cox ii. 495 V. Faveniik ii. 818 V. Hoggart ii. 395 V. King i. 375 Warlow u. Harrison i. 42; ii. 366, 367, 369 Warner v. Jacob ii. 31 V. Tallerd ii. 423 V. Willington i. 274 Warre v. Miller ii. 149 Warren v. lliuhardson . . . ii. 387 Warrington v. Early . . . . ii. 252 y. Furbor ii. 646 Warrior, The i. 654 Warwiclc v. Bruce . . . . i. 195, 260 u. Noakes ii. 805 V. Scott ii. 1-34 Warwick & Wore. Ry. Co., In re il. 319 W.ashbourne v. Burrows i. 260; ii. 651 Watbroke «. Griffith .... i. 461 Watchorn v. Langford . . . il. 187 Waterhouse v. Jamieson . . il. 298 V. Keen « . il. 597 Waters, Ex parte ii. 863 V. Earl Thanet . ii. 877, 878, 883 V. Mansell il. 698 V. Monarch Ins. Co. ii. 118, 186, 190 V. Ogden ii. 930 w. Tom kins ii. 888 V, Towers il- 479 Watherell v. Howells .... i. 437 Watkins v. Maule . . . .11. 922, 949 V. Nash i. 63 V. Perkins i. 268 V. Vinee i. 90, 92 Watling 0. Honvood . . . . il. 615 V. Oastler i. 643 Wntson, Ex parte ii. 489 V. Allcoek ii. 94 V. Ainberg., &c. Ry. Co. i. 796, 823 V. Clark ii. 125 V. Denton ii. 521 V. Earl Cliarlraont . . . ii. 317 V. Evans .... i. 532 ; ii. 243 V. Hetherlngtou . . . . ii. 827 V. McLean ii. 899 V. Mainwaring . . . . ii. 201 V. Moore ii. 695 V. Murrel i. 70 V, Pears i. 310 V. Reid ii. 401 Watson V. Russell . . ii. 223, 248, 595 V. Snaed i. 503 V. Spratley . . i. 263; ii. 563, 654 c. Swann i. 84 o. Tin-elkeld i. 227 V. Walthara 11. 31 : Price ii 557, 561 V. Raikes . ii. 227 V. Styan . . . ii. 21 "Wytlies V. Labouchere . . . ii. 103 Wyvill V. Bisliop of Exeter . ii. 374 Xenos r. Fox . . ii. 138 V. Wickbam I. 50, 669 Yaed v. Ellard . . ii. 932 Yates V. Aston . . ii. 9, 849 V. Boen . . . i. 2.35 V. Dalton ii. 259 V. Dunster . . . i. 399, 444 V. Finn . . . ii. 282 V. Frickleton . ii. 813 V. Gardiner . . i. 307 u. Hoppe . . . i. 663 V. Madeley . . ii. 942 1). Nasli . . . ii. 216, 244 V. Wliyte . . i .182, 191, 196 Yeatman, Ex parte . ii. 722 Ye\\z,Tii, Ex parte . i. 651 ; ii. 303 Yellowly v. Gower . . i. 384 ; ii. 906 Yeoman i;. Ellison i. 467 Yeomans r. Williams . . . ii. 883 York & N. Midland Ry. Co. v. Hudson ii. 311, 315 York Building Co. v. Mackenzie ii. 779 V. Grindstone .... i. 461 Yorke v. Grenaugh . . i. 614 Yorks. Banking Co. v. Beatson ii. 260 Yorksliire Ry. Wagon Co. v. Ma- clure . . . . . . ii. 310, 733 Young, Ex parte . . . . ii. Ill 0. Cole ii. 784 (,. Glover . . . . ii. 216 r. Grote i. 548 V. Higgon i. 310 V. Lambert i. 622 V. Matthews . . . . ii. 452 V. Moeller . . . . i. 723, 730 u. Murphy ii. 327 V. Smith . . i. 301 ; ii. 333 V. Spencer . . . i. 385 V. Timmings i. 24 V. Turing . . . . ii. 166 Ysabel La ii. 70 Zagury v. Furnell .... ii. 451 Zouch V. Parsons i. 195 V. Willingale . . i. 424, 465, 471 Zuilchenbart v. Alexander . . i. 665 Zunz V. S. East. Ry. Co. i. 786, 791, 796 Zwilchenbart v. Henderson . 1. 724 INDEX OF AMERICAN CASES. THE REFEEENCE3 ARE TO THE BOTTOM PAGING. PAGE Aeat V. Atkinson ii. 446 Abberger v. Marrin . . . . ii. 76() Abbott V. Alsdorf i. 52 V. Bosworth i. 361 V. Shepard i. 42, 287 Abel V. Alexander ii. 399 Abrams v Pomeroy .... i. .323 V. Suttles i. 11, o3 Abshire v. Mather i. 28 Achison, &c. R. R. Co. v. Flinn i. 810 Ackens v. Winston .... ii. 6 Ackerman v. Hunsicker ... ii. 7 Adair v. Brimmer 1. 208 Adams v. Barrett ii. 715 V. Clem i. 452 u. Commercial Bank . . ii. 7 V. Foley ii. 472 ;;. Hill i. 286 V. Leip i. .341 V. McKesson ... . i. 341 „-. McMillan ii. 429 V. Rowan ii. 715 V. Smilie i. 53 V. United States . . . i. 119, 120 Adams Min. Co. v. Senter . i. 169, 447 Adderly v. American, &c. Ins. Co. ii. 123 Adkins v. Columbia Life Ins. Co. ii. 204 V. Watson ii. 429 Adrain v. Lane i. 299 Advertiser, &c. Co. v. Detroit . i. 322 iEtna Bank r. Fourth Nat. Bank ii. 893 ■ Mtna. Ins. Co. v. Wheeler . . i. 606 ^tna Life Ins. Co. u. Paul . ii. 201 Agricultural Bank v. Rice . . i. 71 Aguirre v. Parmelee . . . . ii. 487 Ahearn v. Ayres i. 35 Aiken v. Telegraph Co. ... i. 101 Akin V. Drummond . . . i. 286, 288 Alabama, &c. Life Ins. Co. v. Cen- tral Agricultural, &c. Assoc, i. 248 Alabama, &c. R. R. Co. v. Sanford ii. 607 Albee v. Albee i. 630 Albers i>. Commercial Bank . i. 542 Albertson v. Ashton . . . i. 102, 273 VOL. III. Albion Lead Works v. Williaras- PAGB burg City Fire Ins. Co. Albrecht v. State . . Alden v. Goldie . . . Alderman v. Eastern R. Aldrich v. Boston, &c. R u. Campbell . . u. Lyman . . V. Warren . . Aldridge v. Turner Alexander v. Nelson Alexandria Sav. Inst. v. Thi Allan V. Ferguson Allard v. Greasert Allen V. Allen V. Baker . V. Brown V. Carr . V. Duffie . u. Ham . 0. Kramer V. Lathrop V. McKean V. Merchants' Bank o. Morgan . u. Nofsinger V. Pennell . V. Potter !;. Prater V. Pryor . V. St. Louis Ins. V. Woodward V. Yeater AUentown Bank v. Beck AUing V. Boston, &c. R. R. AUingham v. O'Mahoney AUis V. Billings . . . Allison's Appeal . . Alloway v. Rabineau . Allstan V. Contee . . Altemus v. New York Alter V. McDougal Altringer v. Capeheart Alwood V. Ruckman Co. 11. ii. 188 754 ii. 30 Co. ii. 456 605 ii. 893 Co. Co ii. 770 i. 12 ii. 715 IS ii. 7 . ii. 440 ii. 440 i. 9 ii. 323 i. 290 ii. 472 ii. 755 i. 607 i. 542 ii. 7 i. 4 i. 674 i. 27 i. 286 i. 305 ii. 509 i. 29 i. 29 ii. 115 21; ii. 6 ii. 782 ii. 770 i. 812 ii. 447 ii. 715 i. 339 ii. 342 i. 25 i. 38 ii. 611 i. 320 i. 340 XCVlll INDEX OF AMERICAN CASES. Ambrose v. McDonald . . . i. 110 American Emigrant Co. v. Clark i. 542 American Exp. Co. ia Pickney i. 289 V. Spellman i. 7B7 American Ins. Co. i: Foster ii. 188 V. Smitli . . ii. 1!I4 American Wine Co. v Braslier ii. 776 Ames V. Brown . ii. 5 V. McCamber ii. 700 Ames Iron Works i'. Warren . ii. 760 Amey v. Allegheny C ty . . i. 6 Amherst Academy v. Cowls . i. 12 Amity v. Reed . . i. 21 Amphlett v. Hibbard ii. 5 Amson v. Dreher . ii. 434 Anderson xk Earle . i. 208 V. Green . . . ". i'. 16 ii. 607 V. Levan . . , i. 133 u. Moncrief . ii. 716 V. Norvill . . . . ii . 81, 83 V. Roberts . . ii. 715 V. Spence . . i. 265 Andres v. Lee . . ii. 501 Andrews v. Campbell ii. 843 i: Congar . ii. 219 V. EstGS . . i. 6U !'. German Nat. Bank . . 1. 5.50 V. Kneeland ii. 513 ;;. Marshall . . . ii. 715 V. Rue . . ii. 893 V. Schott . . . i. 1.33 Angler i: Smalley ii. 610 Aniba v. Yeomans . . '. . ii.' 220, 242 Antoine Co. r. Ridge Co. . . i. 339 Apperson v. Moore ii. 7 Applegate v. Koons . ii. 819 Appleman v. Emerson i. 3.34 V. Fisher . . i. 294 Appleton V. Bancroft . ii. 440 V. Chase .... '. "i. 3.3 ; ii. 11 V. Edson .... ii. 26 Appling V. Odom . . i. 341 Archarabau v. Green . ii. 5 Archer v. Walker . . i. .524 Archibald v. Tliomas . . . . i. 289 Argall V. Smith . . i. 133 Argenti v. San Francisco . . i. 38 Armendiaz v. Serna . ii. 766 Armington v, Houston ii. 527 Armour !■. Pecker .ii.' 527, 530 Arms V. Asliley . i. 248 Armstrong v. Bicknell i. 341 V. Lawson . i. 253 V. McGhee i. 35 V. S to wall . . . i. 71 Arnauld v. Griggs . . i. 65 Arnold v. Delano . . ii. 447 V. Prout .... ii iTR <.-. River R. R. Construction Co. . i. 304 Arques v. Wasson . . ii. 7 Arthur v. Cole . . . . . . ii. 321 Arthur v. United States . . 1. 119, 120 Article on Covenants of Warranty i. 300 Artman v. Bell ... ii. 770 Ashburne v. Gibson . . . i. 28 Ashe V. De Rosset Ashford v. Robinson . Askew V. Dupree . . Astor I'. Union Ins. Co. Atherton v. Newhall Atkins r. Colby . . V. Plympton . . V. Van liuren V. Womeldorf . . Atkinson v. Atkinson V. Brown V. Patterson Atlantic, &c. R. R. Co. i Nat. Bank . . i. 329 ii. 429 ii. 339 i. 334 ii. 440 ii. 487 ii. 611 i. 630 i. 342 i. 314 i. 249 ii. 26 Carolina . i. 321 Atlantic Mut. Fire Ins. Co. i. Fitz- patrick .... ii. 194 Atlantic State Bank i-. Savery ii. 220 Atlas Nat. Bank v. Savery . i. 172 Attix V. Pelan i. 35, 247 Attleborough Nat. Bank v. Rogers i. 172 Attorney - General v. Continental Life Ins. Co i. 542 V. Mercantile &c. Ins. Co. i. 167 Atwater v. Seely . ii. 7.30 V. Woodbridge . i. 4 Atwood V. Cobb 11. 429, 697 Audenreid r. Randall ii. 473 V. Walker . . i. 320 Auditor v. Ballard . i. 56 Auer V. Penn . . i. 253 Augusta Mut. Fire Ins. Co V. French ii. 194 Aull r. Lee ii. 7 Aultman i'. JIallory ii. 529 Austin V. Dye . . ii. 528 r. Huntsville Coal, &c. Co. 1.340 !•. Miller . . . i. 609 u. Monro . , i. 205 Avandano v. Arthur i. 247 Averill v. Hedge i. 42, 43 Ayer v. Hay . i. 19 V, Milroy . . ii. 80 Ayres v. Probasco . ii. 5, 25 V. Western R. R. Corp. i. 767 Babcook I'. Case . . . . ii. 829 V. Hawkins ... . . ii. 843 v. Lisk ii. 6 V. Raymond i. 37 11. Wilson i. 11, 33 Babley v. Vyse i. 341 Bagg ti. Jerome ii. 715 Bagley v. M'Mickle i. 8 Bade v. St. Joseph Fire, &c. Ins. Co ii. 114 Bailey v. Colby ii. 527 «. Cowles ii. 847 INDEX OF AMERICAN CASES. XCIX Bailey v. FiUebrown . . . i. 340 V. Freeman . \ v>. V. Hudson River R. R. Co. ii. 450 V. Jennings . . . . . ii. 6:i9 u. Smith .... ii. 447, 454 . . i. 208 V. State . . i. 565 V. Walker . . . . . . i. 9 V. Ward . . . . i. 252 r. Wilson . . . . . . 1. 29 Baily v. Milner . Ii. 715 Baird v. Williams . . . . . i. 35 Baker i'. Arnot . . . ii. 501 V. Baker . . . . . ii.611 V. Boston . . . . i. 7 V. Elliot . . . . . ii. 96 V. Frellsen . . . . ii. 843 V. Ingersoll .... . i 205 !'. Jolmson County i. 37, 4;i V. Lever .... . . ii. 82U V. Stinelifield . . ii. 847 Balbec v. Donaldson . . . . i. 49 Baldwin v. Buckland . ii. 709 ,.. Canfield .... .. . i. 172 V. Commonwealtli . i. 38 V. T>ovi . . . . . . ii. 79 V, Ranlee . . . ii. 6 y. Rieliardson . . . i. 110 V. United States Tel Co. . i. 101 Ball V. Powers . . . . ii. 754 Ballard v. Burgett . . . ii. 628 Ballenger v. McLain . . . i. (io5 Ballew V. Sudderth . . ii. 520 Ballou V. Parsons . . . . ii. 510 Baltimore v. State . . . . . i. 6 Baltimore, &c. Land Soc.t . Smith i. 322; ii. 069 Baltimore, &c. R. R. Co. u. Camp- bell . . . . . i. 812 V. Rathbone . . . . i. 768 Banchor u Mansel . . ii. 7.32 Bancroft v. Dumar . . ii. 732 Banfleld v. Rumsey . . *. ii. 342 Bank of British North America y. Ellis . . ii. 218 Bank of Cadiz v. Slemmons . i. 173 Bank of California v. Western Union Tel. Co. . . i. 101 xi. White . . . . . i. 321 Bank of Greenboro v. Clapp . . ii. 7 Bank of Kentucky v. Adams Exp. Co . . i. 739 Bank of Newberry v. Stegall . ii. 762 Bank of Muskingum v. Carpenter i. 27 Bank of Rochester v. Jones . ii. 456 Bank of Rutland v. Parsons . ii. 732 Bank of Salina v. Babcock . ii. 220 Bank of Sherman v. Apperson ii. 215 Bank of Silver Creek v. Talcott ii. 770 Bank of the State u. Burton . i. 640 Bank of Toledo y. Toledo . . . i. 5 Bank of Washington y. State . . i. Bannister v. Rouse . . . . ii. 242 Bannon v. Mitchell .... i. 340 Baptist Society y, Robinson . . i. 12 Baptiste y. De Volunbrun . . i. 313 Barbaro v. Occidental Grove . . i. 59 Bardwell y. Purrington . . . i. 655 Barfield u. Price ii. 829 Barliydt v. Burgess .... i. 360 Barker v. Dale i. 339 y. Kounkel i. 205 y. Pittsburgh i. V. Reagan .... .1. 290 Barkley y. Rensselaer R. R. Co. ii. 4^4 Barlow v. Gregory i. 7 u. Scott i. 287 u. Smith i. 12, 25 Barnard v. Backhaus . . . . ii. 744 B. Gushing ii. 218 y. Gaslin i. 322 Barnawell w. Threadgill . . . . i. 29 Barnes v. Ingalls i. 330 0. Ferine i. 11, 12 Barnet r. National Bank . . i. 173 Barney v. Burstenbinder . i. Oil, 738 V. Coffin . .... . i. 25 y. Newcomb . . . . i. 290 V. Worthington .... i. 288 Barns y. Hatch . ... i. 49 Barnum v. Barnum . . ii. 342, 348 Baron < . Placide i. 288 Barons v. Brown i. 101 Barrett v. Buxton i. 229 y. Goddard . . . . . ii. 447 y. McHugh i. 265 u. Pritcliard ii. 527 y. Williamson .... i. 330 Barringer y. Warden i. 10 Barron v. Eldredge .... i. 604 y. Tucker ii. 723 Barrows y. Downs ... . i. 1-34 V. Turner ii. 26 Barry v. Cavanagh . . . ii. 81 Barthell y. Syverson ii. 6 Bartholomew v. Bushnell . . ii. 508 Bartlett y. Hoppock . . . ii. 508 y. Matson i. 247 V. Smith ii. 744 y. Western Union Tel. Co. i. 101 Barton ». Port Jackson, &c. Plank Road Co ii. 762 Bashore r. Whistler . . . . ii. 502 Bass V. Chicago, &c. Ry. Co. . i. 739 y. Pierce i. 554 BSissett y. Bradley .... i. 65 0. Brown ii. 829 y. Hughes . . . . i. 59 ; ii. 843 Bates V. Ball i. 229 V. Stansell i. 524 Bath County v. Amy . i. 241 Batt V. Philbrook . . . ii. 501 Battelle v. United States . . i. 120 Batterson v. Vogel . . . i. 469 INDEX OF AMERICAN CASES. Bauendahl v. Horr . . , Baxter v. State . . . Bay City Bank v. Chapelle Bayley v. Taber 11 265; ii ii. 530 i. 289 ii. 30 ii. 732 i. 102 ii. 5 i. 11 ii. 7 Ii. 508 i. 313 528 893 i. 42 706 843 7G9 339 487 341 i. 37 341 513 Beacli V. Raritan, &c. R. R. Beale u. Ryan .... Beall V. Ridgeway , . V. Wliite .... Beals V. Olmstead . . Bean v. Briggs .... V. Edge Beardslee v. Morgner i. 59, Beardsley v. Davis . . Bearse v. Ropes . . . Beasley v. Webster Beatty v. Fisliel . . . V. Gregory .... Becker r. Hallgarten . Beckwith v. Carroll . . V. Cheever . . . Becnel v. Bcenel . . . Beebe c. Robert . . . Beeker v. Smith ii. 528 Beer Co. i'. Massachusetts . . i. 7 Beers v. Haugbton .... i. 6 V. Reynolds i. 133 V. State i. 6 Beetem v. Burkbolder . . ii. 829 Begole V. McKenzie . . ii. 447 Behler r. German Mut. Fire Ins. Co ii, 188 Behm v. Western Union Tel. Co. i. 829 Behrman v. Basto i, 340 Beime r. Dord ii. 513 Belcher v. Belcher . . . . i 229 Belfast, &c. R. R. Co. u. Unity i. 35, 37 Belknap v. National Bank . . i. 547 Bell V. Barnett .... i. .330 V. Bowers i. 289 V. Bruen i. 287 V. Farmers' Bank i. 49, 50 ; ii. 5 V. Farrar ii. 4'A V. Greenwood .... i. 10 V. Packard i. 319 V. Qiiin ii. 732 u. Radcliff . . . ii. 7 V. State ii. 747 Bellas V. Keyser ii. 242 Beller v. Schultz i. 514 Bellinger v. Kitts i. 293 Belmont v. Coman . . . . i. 285 Belt V. United States .... i. 119 Bemis i>. Becker ii. 732 V. McKenzie I. 315 Ben. Franklin Ins. Co. k. Gillett ii. 782 Benbow v. Iowa City . . . i. Bendetson v. French .... i. Benedict v. Davis i, c. Fields ii. Benefactor, The i. Benjamin v. McConnell . . . i. 2^0 Benner v. PuEEer ii, 530 241 4.59 133 458 713 Bennett v. American Art Union ii. 747 V. Bartlett ii. 501 V. Pratt . . . ii. 429 . . . . ii. 529 . . . . ii. 25 V. Woolfolk . . . . ii. 7.33 Bensley v. Atwill . ... i. 49 Benson v. New York ... i. 4 Bentley v. Johnson . . . ii. 629 V. Morse . . . ... i. 26 Benton v. Martin . . . . i. 248 Be'rard v. Boagui . . . i. 524 Bernstein v. Sweeny . . i. 453, 459 Bergen v. Bennett . i. 330 Berkley v. Cannon . . . i. 229 Berksliire Mut. Fire Ins. Co. 0. Sturgis .... 1. 49 Bernier «. Cabot Manuf. Co. . i. 271 Berrigan v. Fleming ... ii. 5 Berry v. Boyd . . . . . ii. 610 It. Skinner . . ... ii. 30 Besse i-. Dyer i. 56 Bethel v. Hawkins . i..37;ii. 6 Bethel Steam Mill Co . u. Brown ii. 472 Beverleys !•, Holmes ... i, 9 Beyris v. Sporr . . . . i. 624 Bibb V. Bonds . . . . . ii. 611 Bickford v. Cooper . . . ii. 781 Biddis V. James . . ii. 732 Bierbauer !•. Wirth . . . ii. 723 Bigelow r. Elliott . i. 133 Biggs V. Harris . . . . i. 655 Bigler v. Flickinger . . ii. 829 Billgery v. Ferguson ii. 6 BiUmeyer v. Evans ... i. 5 Binford, Re . . . ii. 530 Binge v. Smith . . ... i. 71 Bingham v. Avery ... ii. 6 Birchell ;>. Neaster . . i. 265 Bird V. Richardson . ii. 429 Bird's Appeal . . . . . ii. 829 Birdsall v. Twenty-: "bird Street Ry. Co. . . . . . . ii. 686 Birdsong r. Birdsong . . i. 229, 2.30 Birney v. New York, . Brick i. 320 Bridgeport v. Hubbell . i. 6 Bridgewater Academy v. Gilbert i. 12 Briggs V. Central Bank . . i. 543 V. Hervey i. -32'.) V. Sizer ... . i. 11, 33 V. Tillotson . . . i. 11, 3o V. Vanderbilt i. 287 V. Vermont Central R. R. Co. ii. 854 Brigham v. Maxcy ii. 501 Brimtiall v. Van Campen . i. 314 Brink v. Chicago, &c. R. R. Co. ii. 500 Brinkman v. Hunter . . . i. 274, 820 Brinkmeyer v. Browneller . ii. 7 V. Helbling . . . ii. 7 Briscoe v. Bronaugli ... ii. 769 Bristol V. New Cliester ... i. Bristol Knife Co. v. First Nat. Bank i. 542 Britton V. Aym&v . i. 524 i: Pliillips . . i. 42, 43 V. Platte City . . i. 241 Broadwater v. Darne . . i. 22U Brockway v. Maloney . . ii. 7(j(j Bromley v. Goodrich . . ii. 715 Bronson ?■. Kinzie . . . i. 5 V. Winian .... i. 330 Brooklyn, &c. R. R. Co. v. Brook- lyn, &c. R. R. Ci). . . . i. 4 Brooklyn Life Ins. Co. u. Bledsoe i. 305 Brookman v. Ilamill . i. 620 Brooks V. Harrison . . i. 402 !-. State . i. 665 r. Sullivan i. 146 Broughton v. Pensacola i. 241 Brewer v. Lewis ii. 513 Brown v. Adams i.9 V, Adams Exp. Co. i. 708 !■. Becknall . . ii. 26 u. Brown i. 248, 25S ,253 ii. 714 i. Budd . . i. 31 V. Burrington . i. 341 V. Coats . . i. 341 V. Delaney ii. 3,0 V. Evans . . . i. 205 V. Everliard . ii. 854 V. Fitch .... ii. 528 V. Foster . . i. 334 V. Freeland i. 249 V. Itaynes ii. 527 r. Kent Count) Probate Ct ii. 80 (/. Leckie i. 551 !■. Lincoln . i. 341 !'. Memphis, &c R. R. Co. i. 746 V. Morris . . i. 253 V. Murphee . ii. 610 V. Rawlings . i. 254 V. Ray . i. 10 V. Rice . . i. 36 ij. Sayles . . ii. 508 0. Scott . ii. 25 c. Slater . . i. 285, 288, 289, 293 Brown v. Smith . . V. SpofEord . V. Thomson Brown's Accounting Browne r. Bennett Brownell v. Harsh . . Browning v. Hamilton Brua's Appeal . . . Bruce v. Fulton Nat. Bank . r. Pearson . . . I. Wood Bruner v. Wlieaton Brunhild v. Freeman . Brunner r. Brennan Brunswick, &c. Co. i'. Hoover Brush V. Barrett .... V. Peterson . Brusle v. Thomas Bryan v. Brazil . V. Dyer . . V. Harrison . V. Stewart Bryant v. Booze r. Hawkins . Bryer v. Weston Bryson v. Lucas 35, ii. 30 ii. 575 ii. 611 i. 208 ii. 611 . i. 28 ii. 440 ii. 710 i. 340 43 71 i. 37 . 287 . 601 . 528 . 542 ii. 6 i. 35 i. 29, 322, 847 i. II i. 321 i. 208 43, 287 i. 131 i. 133 .69 Buchanan v. International Bank, i. 10 V. Smith i. 509 Buck V. Albce . . . . ii. 762 V. Burk . , . i. 289 V. Burt ... i. 285 Buckalew v. State . . . ii. 747 Buckingham v. Burgess . . i. 133 V. Fisher i. 605 V. Osborne ... . . ii. 434 Buckley !■. Beardsley . . . . ii. 4l.'9 V. Furniss . . . . . ii. 487 Bucklin v. Bucklin . . . ii. 6 Buckmaster r. Smith . . . . ii. 527 Bucknam v. Goddard . . . . ii. 501 Budd V. Thurber i. 265 Buffalow !■. Buffalow .... i. 234 Bnffuni r. Merry . . . . ii. 532 Buford V. Tucker .... i. 609 Bugbee v. .Stevens . . . . ii. 527 Buis 11. Cook ... . . . i. 509 Bulkley K. Buffington i. 49 ('. Landon . .... i. 21 i;. Morgan . . . . ii. 829 Bull ii. Griswold .... . i. 49 !•'. Harris ii. 607 V. Talcott i. 55 Bullard v. Wait . . . . ii. 440 Bullock I'. Adams ii. 399 V. Ischergi ii. 475 Bumell 0. Marvin ii. 527 Bumpan v. Faggart . . . , ii. 611 Bunn V. Gorgas i. 5 V. Viilley Lumber Co. . . ii. 529 Bunnel v. Whittaw . . . . ii. 610 Bunting v. Camden, &c. R. R. Co. ii. 893 Burbank v. Crocker ii. 527, 530 INDEX OF AMERICAN CASES. cm, Burch v. Smith ii. 769 Burchard v. Dunbar . . . -. i. 311 Burchiel v. United States . . i. 120 Burckhardt v. Burckhaidt . . i. 290 Burdine v. Grand Lodge . . i. S30 Burge V. Cone ii. 440 Burgess r. Pollock .... i. 2:;3 V. Vreeland ii. 234 Burk, Ex parte ii. 754 Burke v. Harrison . . . . ii. 529 Burmeister v. New York Elevated It. R. Co ii. 792 Burnet i'. Bisco i. 9 Burnliam v. iDunn i. 29 Burns v. Mays ii. 446 V. State i. 7 I'. Tliayer ii. 30 Burr V. Robinson .... . ii. .SO Burridge c. Fogg ii. 25 Burrill v. Stevens ii. 769 Burroughs v. Richraan . i. 228, 229 Burrows v. Whittaker . . . ii. 447 Burt V. Dewey ii. 501 Burton !'. Mason i. 248 V. Shotwell i. 36 V. Wilkinson i. 606 V. Young ii. 608 Busli V. Holmes ii. 434 V. Rogan ii. 730 V. Shipman i. 6 Buson I'. Dougherty . . . . ii. 529 Bussey w. Memphis, &c. R. R. Co. i. 795 Buswell V. Biuknell . . . . ii. 5">2 Butcher «. Brownsville . . i. 312 Butler v. Butler i. 290 u. Kidder i. 378 V. Knight i. 110 V. Moore ii. 7.30 V. Pennsylvania . . . i. 4, 6 V. Rice i. 290 Butt V. Eilett ii. 7 Byington v. Oaks ii. 611 Byrd v. Fox i. 11 Byrne i). Marshall i. 286 Byrnside v. Burdett . . . . ii. 501 C. C. I. Ry, Co. u. "Walrath Cabbott V. Radford Cabern v. Campbell Cadens v. Teasdale Cadwallader v. West Cady V. McDowell Cailleux v. Hall Cain V. Warford Cairo, &c. R. R. Co. i. 739 ii. 611 ii. 487 ii. 843 i. 234 i. 462 Cake V. First Nat. Bank . Calatian v. Babcock . . . . Calbreath v. Va. Porcelain Co. Caldwell V. Carrington i. 10 .232 Mahoney i. 20, 155 . J. 173 . . ii. 487 i. 821 i. 291 , Layton i. 288 Caldwell v. McVicar .... i. 205 V. Southern Express Co. . i. 739 Calhoun v. Atchison . . . . i. 102 V. Calhoun i. 27 Calkins v, Loclcwood . . . . ii. 472 Calloway v. People's Bank . . . ii. 30 V. Witherspoon .... i. 229 Calvo V. Davies . . ' . . . ii, 843 Cambridge v. Lexington . . i. 330 Cambridge Sav. Bank v. Hyde ii. 251 Camden v. McKoy ... ii. 215, 219 Cameron v. Lewis i. 254 V. Rich i. 707 Camfrancq v. Pilie . . . i. ]0 Campbell v. Crampton . . . ii. 323 u. District of Columbia i. 119 o. Findley ii. 429 V. GuUatt ii. 339 V. Hastings .... . i. 133 V. New England, &c. Ins. Co. ii. 202 V. Nichols .... . i. 312 V. Thomas i. 52 V. Tompkins ii. V. Smith i. 59; ii. 843 u. Wilcox ii. 010 Campion v. Kille . . . . i. 313 Canal Co. v. Railroad Co. . i. 4, 288 tJ. Ray ... . . . ii. 854 Cann v. Williams i. G.j5 Cannon v. McNab ii. 5 V. Stuart i. Ij5.j Canter v. Kingman ... ii. 527 Cantey v. Duren . .... i. 10 Cantu i\ Bennett . ... i. 312 Capeharti'. Seabord, &c. R. R. Co. i. 707 Capron v. Thompson .... i. 523 Cardinal v. Edwards . . . . ii. 529 Cardwell v. Strother i. 25 Carey v. Miller ii. 775 Carleton v, Darcy i. 363 V. Sumner ii. 5.30 Carley v. Highgate i. 21 Carlisle v. Brennaa . . . i. 254 Carlotta, The ii. 458 Carlton v. Vineland Wine Co. i. 322 V. Whitcher ii. 732 Carmichael v. Orier .... i. 133 u. State ii. 3.39 V. White i. 321 Carnahan v. Pell ii. 242 Carnes v, Apperson . . . . ii. 529 V. Nichols i. 606 V. Polk ii. 715 Carpenter v. Biggs .... i. 169 V. Dexter i. 313 V. Galloway i. 261 Carr v. Card i. 10 V. Duval . . . . . . i. 35 V. Hoxie . . i. .52 V. National Security Bank i. 543 V. Passaic Land Improvement, &c. Co ii. 429 CIV INDEX OF AMERICAN CASES. Carrico v. Farmers', &c. Nat. Bank ii. 5 Carrington v. Fickliu . . . i. 654 Carroll v. I'aul ii. 607 V. St. Johns, &c.. Relief So- ciety .... i. 361 Carson v. Clark i. 21 u. Jersey City Ins. Co. ii. 187, 198, 194, 203 Carter v. McClintock i. 52 V. Mills i. 52 V. Willard .... ii. 440, 472 Carver v. Eads i. 58 V. Jackson i. 49 V. United States . . .1. 119 Cary v. Gruman ii. <-)<19 I'. Hotailing ii. 7(19 Casatly v. Woodbury County . ii. 762 Casco Bank v, Keene .... i. 551 Case V. Hall ii. 501 V. Hart i. 342 V. Fogg i. 402 V. Jennings ii. 529 Casey v. Holmes i. 286 Casler n. Connecticut Mut. Life Ins. Co i. 288, 289 Cassey v. Pennoyer .... i. 293 Cassidy o. Cook . . ii. 30 Castle V. Beardsley . . . . ii. 429 Castner v. Slater . . . . i. 28 Caswell V. Districh .... i. 341 Cates V. Bales ii. 770 Catlett V. Trustees, &c. . . . ii. 755 Catlin V. Ware i. 71 Caujolle V. Ferrie . . ii. 340, 343 Caulkins v. Fry . . . . i. 228, 229 Cavender r. Guild .... i. 312 V. Waddingliam ... i. 229 Cavoder v. McKelvey . . . i. 29 Central Bridge Corp. r. Lowell . i. 4 Central City Sav. Bank . Gifford i. 52 u. Hayward ii. 527 u. Herring i. 25 V. Hyman ii. 50, 79 V. Jack ii. 528 V. Johnson ii. 26 V. Lillie i. 287 V. Lynch ii. 487 V. Pinney i. 289, 291 u. Pratt i. 312 tj. Rice ii. 792 V. Russell i. 27, 28 V. Sawyer 1. 290 V. Sigourney i, 10 V. Small i. 10 V. United States . . . i. 119, 120 V. Woodrufif i. 289 Clark County v. Lawrence . . i. 21 Clarke v. Hawkins . . . . ii. 893 V. McFarland i. 28 V Marriott ii. 433 v. United States . . . . ii. 719 Classen v. Leopold .... i. 453 Clawson V. Monson ii. 6 Clayton v. Hester ii. 529 Cleavenger v. Beath ii. 7 Cleavinger v. Reiar .... 1. 323 Clem V. Martin 1. 341 Clemens v. Conrad . . . . ii. 610 Clement v. Bennett ii. 5 Clements v. Hood 1. 52 Clews V. Lee County . . . i. 241 Clifford, Matter of . . . . i. 605 Clinton Wire Cloth Co. v. Gardner i. 340 Clippinger v. Hepbaugh . . . ii. 719 Clopper «. Poland ii. 81 V. Union Bank . . . . ii. 832 Clopton V. Gholson .... i. 205 Clougli V. Baker i. 304 V. Clough ii. 775 Coates V. New York i. 7 V. Roberts ii. 26 Cobb V. Cowdery i. 26 V. Hatfield ii. 829 V. Illinois Central R. R. Co. ii. 456 V. Page i. 12 V. United States .... 1. 120 Coburn v. Hartford .... i. 290 V. Odell ii. 732 Cocliran v. Ripy i. 605 V. Roundtree ii. 529 I). Utt ii. 7 Cock V. ^^tloore i. 265 Cockran v. State i. 655 Coe V. Louisville, &c. Ry. Co. i. 806 Coffin V. Adams ... . ii. 893 <'. Rich i. 4 Coggeshall v. Coggeshall . . . i. 9 Coggill u. Hartford, &c. R. R. Co ii. 527 Cohen V. Gwynn ii. 571 V. Piatt ii. 532 Colt V. Commercial Ins. Co. . i. 334 Colcock V. Goode ii. 501 Cole V. Berry ii. 528 V. Favorite i. 605 V. Goodwin i. 739 c. Hay ii. 775 V. Langley ii. 342 V. Mann ii. 528 Coleman v. Blewett .... i. .339 V. Chester i. 254 V. Eyre i. 11, 33 V. Frum i. 28 V. Galbreath ii. 7 V. Livingston i. 605 ». Van Rensselaer ... ii. 6 Colgin V. Henley i. 28 Colgrove !•. Tallman . . . . ii. 219 Collect V. Ellis i. 107 Collins r. Barnes i. 28 u. Bennett i. 512, 604 V. Burns i. 606 t . Collins ii. 5 V. Merrell ii. 762 V. Ralli i. 604 r. Whigham ii. 789 Colquitt V. Thomas . . . . ii. 769 Colton V. Good ii. 510 Colvin v. Williams .... i. 263 Colyar v. Taylor i. 554 Coraan v. Lakey ii. 528 Comer v. Cunningham . . . ii. 528 Comfort V. Kiersted . . . . ii. 447 Commercial v. Chambers . . . i. 5 Commercial Bank v. First Nat. Bank i. 547 V. New Orleans . . i. 293 Commissioners v. Perry . i. 11, 25, 33 Commonwealth v. Atkinson . i. 655 V. Bacon ... . i. 6 K. Boston, &e. R. R. Co. . i. 811 V. Edwards i. 56 u. Has ii. 754 V. Jackson i. 49 V. Jeffries i. 101 V. Louisville, &c. R. R. Co. ii. 755 V. Mann . ... . i. 6 V. Munson .... ii. 3-39, 341 <•. Slieriff ii. 747 <^. Thatcher ii, 747 CVl INDEX OF AMEKICAN CASES. Comp V. Carlisle Deposit Bank i. 539 Compton [■, Pratt . . . ii. 628 V. Shaw i. 605 Comstock V. Breed .... i. 11 V Howd . i. 12 ii. Smith i- 21 Conant v. Jackson . . . i. 229, 230 Conard v. Atlantic Ins. Co. . ii. 770 Condly v. Devoe . . . . i. 27 Congregational Society v. Perry i. 11, 33 Conkey v. Bond . . . ii. 829 Conner v. Abbott . Conover v. Stillvvell V. Wardell . . . Consequa !'. Willings Consolidated Assoc, u. Mason Consolidated Gregory Co. v. Rabcr i. 168 Bank of the . i. 551 ii. 5 i. 10 i.203 i. 314 ii. 7 Continental Bank v. Commonwealth Converse v. Cook ii. 219 Conway v. Edwards . . . ii. 472 Conway Bank u. American Exp. Co i. 554 Conwell r. Pumphrey i. ^87 Cool V. Phillips ... i. 605 Cook V. Andrews .... i. 340 V. Bradley . . . . i. 9, 25, 26 •J. Clark ii. 6 V. Continental Ins. Co. . ii. 188 V. Oilman . . . . ii. 829 0. Rogers .... ii. 6 V. Shearman ii. 610 Cooke V. Crawford ... i. 313 Cooper V. Dedrick ii. 429 V. Mcllwain . . ii. 828 V. New York Central R. R. Co i. 155 V. Reaney i. 314 Copeland v. Mercantile Ins. Co. i. 554 Copland v. Bosquet . . . ii. 530 Copley V. Sandford .... i. 313 CoppernoU v. Keteham . . . ii. 610 Corbett V. Woodward . ii. 6 11. 1. Corcoran v. Sheriff Coriell v. Hum . Cornell v. Andrews V. Dean . V. Todd . . V. XJtica, &c. R. R. Co. Cornelson i". Sun Mut. Ins. Co Corning v. Colt . . Corrie v. Billin . . . Corry Nat. Bank v. Rouse Costello V. Cady Costelo V. Crowell . Cottage St. Meth. Ep. Ch. dall Cotten V. Willoughby Cotter V. Frankford, &e. Ry. Co. i. 811 Cotton V. Gregory .... . i. 52 770 i. 6 3iU 341 286 i. 250 . i. 56 . i. 37 ii. 611 ii. 611 ii. 847 ii. 242 Ken- 1.13 ii. 7 Cotton V. McKee ii. 25 Couch V. Woodruff .... i. 321 Coulter V. Robinson . . . . ii. 716 Council Bluffs Iron Works v. Cup- pey i- R. Co 187, i Courtenay v. Euller . . . Courtright v. Burnes .... Courvoisier v. Bouvier Couse t'. Tregent . . Cousinery v. Pearsall . . Covell V. Hitchcock . . . Covenant Mut. Benefit Assoc. Conway . ... Cowdrey r. Vandenburgh Cowing V. Altman . . Cowles V. Marble . . . Cox V. Jones r. Morrow V. Wells . V. AVestern Pacific R Coykendall v. Eaton Coyne v. Weaver . Cozzins V. Whitaker Craig V. Dimock V. Warner 1-. Wells Crain v. McGoon Cram v. Burnham Crane v. Baudouine 1-. City Fire Ins V. Hardy . . Crans v. Hunter Crater v. Binninger Crawford v. Branch Bank V. Forristall V. Longstreet . V. Paine . . . V. Russell ... u. Scovell Crawshaw r. Roxbury Creel v. Kirkham . . Creighton v. Sanders , Cresson v. Philadelphia, Co Crews V. Farmers' Bank Crisfield v. State . . Crist V. Kleber . . . Crittenden v. Fiske . Crocker v. Bellangee . V. GuUifer . . . V. Whitney Crofoot V. Bennett Croft V. Williams . . Crompton ;,. Pratt Cromwell i,. Royal Canadian Ins. Co Crook V. Cowan Crooker v. Jewell Cross V. O'Donnell V. People Crossland v. Hall Crouch V. Fowle 299 i. 247 ii. 722 i. .346 ii. 528 ii. 513 ii. 487 &c. . ii. 114 . ii. 893 . i. 542 . ii. 5, 30 . ii. 454 . i. 314 ;. 71 Co. i. 290 i. 458 . i. 289 . ii. 501 . ii. 610 . i. 1.33 . i, 286 . ii. 9 ii. 243 i. 19 , 188 .314 i. 29 i. 167 i. 831 i. 472 i. 3C1 i. 33 i. 321 ;i. 776 i. 56 i. 341 i. 252 R B. i. 812 ii. 251 ii. 862 ii. 528 i. 79, 93 ii. 715 527, 532 . i. 25 ii. 447 i. 208 . ii. 7 j. 319 . i. 36 . ii. 26 ii. 440 ii. 610 ii. 829 i. 302 INDEX OF AMERICAN CASES. CTU Crowley v. Genessee Min. Co. i. 169 Crozier v. Kirker i. 133 Cruise v. Christopher . . i. ;i2'J Crutchfield v. Donatlion . . . i. 218 Cubbedge u. Napier .... i. 311 Cullen !'. Lord i. 514 Cumberland Bone Co. u. Andes Ins. Co ii. 454 Cumberland Coal, &e. Co. v. Par- ish ii. 769 Cummings v. Dennett i. 247 ; ii. 429 (I. Gann i. 56 V. Henry i. 229 V. Thomas ii. 528 Cummins v. Lods ii. 776 Cunningham v. Bay State . . i. 630 Curley i'. Harris ii. 832 Currier r. Hodgdon i. 25 V. Knapp ii. 528 V. Lockwood ii. 215 Curry v. Davis i. 29 Curtis V. Abbe i. 254 V. Curtis ii. 832 V. Goodenow ii. 6 V. Hall i. 229 V. Leavitt i. 311 Cushing V. Breed ... ii. 440, 454 V. field ii. 242 Cutler V. Downey i. 459 V. Everett i. 11 V. Reynolds i. 543 u. Rose ii. 5 V. Wright i. 311, 314 Cutter V. Reynolds .... i. 248 V. Roberts . . .' . . . . ii. 80 Dahlman v. Hammel . , . i. 266 Dailey v. Cohen ii. 611 Daily's Estate i. 208 Dair v. United States .... ii. 80 Dale V. Governor i. 6 V. Brmckerhoff . . i. 514, 524 Dambmann v. Schutting . . ii. 832 Damman v. Commissioners of School Lands ... . . i. 4 Damon v. Osborn ii. 447 Dana v. Fiedler i. 334 V. Kemble i. 329 Danfield v. Haeger . . . . i. 604 Danforth v. Charles .... ii. 8 V. Walker .... . ii. 434 Daniel v. Mitchell ii. 829 Danolds v. United States . . i. 120 Danville Bank v. Waddill i. 514, 524, 540 Danzeisen's Appeal .... ii. 5 Darby v. Cabaune .... i. 2.30 Darland v. Greenwood . . . i. 305 Darst V. Bates i. 265 V. Brockway ii. 501 Dartmouth College v. Woodward i. 4, 5, 6,7 Davenport v. First Congregational Society i. 206 Davidson v. King ii. Davis V. Arledge ii. 716 V. Bechstein ii. 893 V. Bowling 1. 314 V. Brocklebank . . . i. 841 u. Calloway i. 58 u. Clinton Water Works . i. 60 V. Flagstaff Silver Min. Co. i. 168 V. Glenn i. 321 V. Hendrie ii. 686 K. Hill ii 447 V. Ilolbrook ii. 715 V. Hunt .... . . ii. 502 V. Inscoe i. 252 V. Kansas City R. R. Co. . i. 812 u. Landgrove i. 21 u. Lane . . ... i. 203 V. Loftin i. 323 V. Mills ii. 24 V. Munson i. 56 V. O'Farrall i. 4 V. Old Colony R. R. Co. . ii. 79 n. Richardson ii. 611 V. Turner . . . . ii. 529 V. Will ii. 79 Davis, &c. Co. v. Stone . . . i. 323 Davis Sewing Machine Co. v. Stone i. 322 ; ii. 79 Davy V. Morgan . . i. 247 ; ii. 610 I'. Shannon i. 271 Dawson i'. Dawson ... i. 50 V. Real Estate Bank . . i. 540 Day V. Bassett . . . . . ii. 528 V. Elmore ii. 429 V. Holmes i. 108 V. Mooney ... . . i. 49 u. Putnam Ins. Co. . . i. 56 V. Raguet ii. 513 Dayton v. Craik i. 408 V. Ryerson . . . . . ii. 575 Dayton, &c. Tump. Co. v. Coy D'Aquin v. Barbour . D'Armond v. Dubose . . . De Beerski v. Paige . . . De Bruhl v. Maas .... De Feriet v. Bank of America De Forth v. Wisconsin, &c. R. Co. . De Groot v. Van Duzer De Haven Bank . . De Lavallette v. Wendt De Lorme v. Ferk D'Meza v. Generes De Ruttew. New York, &c. De Sobry v. De Laistre . . . i. 249 D'Wolf V. Babbett ii. 530 Deaderick v. Watkins . . . ii. 770 Deady v. Goodenough . . . ii. 440 Deal V. Palmer ii. 629 i. 293 ii. 610 ii. 762 ii. 6 i. 547 R. ii. 755 ii. 715 , Kensington Nat. i. 5.39 ii. 686 ii. 610 ii. 7 Tel. Co. i. 101 cvni INDEX OF AMERICAN CASES. Dean v. Adams . V. De Wolf . V. Lawham . Deane v. Caldwell V. Covel . . Dearborn v. Cross V. Turner Dearbourn c. Union Nat. Deardorff c. Foresman Decker v. Furniss . . V. Morton . . . Decorah v. Kessehueier Dee V. Downs Deener v. Brown Deering v. Chapman Degraw v. Elmore Delano v. Joplin . . Delaware, &c'. Canal Co. sylvania Coal Co. Delaware, &c. li. R. Co Delaware State Ins. Co. Deming r. Fosltr Demoss c. Noble Demott V. Field . t\ Hagerman . . Demutb v. American Institute Den V. Camp Bank i. 320 i. 169 i. 286 i. 408 i. 05.5 ii. 854 ii. 532 i. 539 ii. 80 i. 288 ii. 342 i. 289 i. 265 i. .542 ii. 762 ii. 829 i. 312 V. Penn- n. 792 Napbeys Sliaw 810 li. 114 ii. 610 i. 35 i. 206 i. 340 i. 37 1. 285 Denby v. Graff i. 286 Denis c. Faulkner .... i. 311 Denmead v. Glass ii. 440 Dennison ; . Dennison . ii. 339, 341 V. Pboenix Ins. Co. . . . ii. 188 Denny p. Williams ii. 434 Dent V. Nortb American Steam- ship Co i. 285, 293 Denton v. English .... ii. 715 u. Erwin ii. 715 V. M'Kenzie . . . . ii 769 Dentzel v. Waldie . . i. 71 Derrickson v. Quimby . . . i 679 Derry v. Derry . i. 15 Derry Bank r. Webster i. 49 Desbon v. Bigelow .... n 527 !•. Fosdick i 102, 247 Desloge /-. Pearce .... i 339 Desnoyer i\ McDonald 1 315 Dessauer i\ Baker . 1 452 Detroit Schiitzen-Bund v. De troit Agitations- Verein . . . 1 167 Develin v. New York . . n 893 Devendorf v. West Virginia Oil, &c. Co n 215 Devin v. Scott i 229 Dewey r. Union Scliool Dist. ii 800 Dexter r. Norton . . ii 447 V. Shepard . . . ii. 30 Dial V. Gary ... 1 312 Dickenson c. Chamber . . 1 107 Dickerson v. Brown . . i. 2 V. Derrickson i. 25 V. Merrimau . . . , ii. 8 Dickinson v. CounifE .... i. 205 V. Edwards i. 311 V. Gay ii. 613 V. Hall ii. 251 Dickman v. Williams . . . . ii. 487 Dickson c. Compton .... i. 205 f. Jordan . . . . . ii. 608 V. Tbomas ii. 744 Dielil V. Woodruff Sleeping Car Co i. "39 Dietricbi). Pennsylvania R.R. Co. i. 812 Dietz V. Harder ii. 261 Dillard !•. Louisville, &c. R. R. Co. i. 767 Dillingham v. Estill .... i. 280 Dillon 1-. Masterton . . ii. 399 Dingeldein v. Tbird Ave. R. R. Co . ii. 843 Dingley v. Greene . . . . ii. 792 V. Oler ii. 776 Louisville, &c. Ry. Dinsmore C.i. . . .... 'i. 802 „. Philadelphia, &c. R. R. Co. i. 167 1). .Stimbert ... District Township c. Dubuque Ditcham ;■. Worrall . . . Ditto V. Harding .... ii. 220 i. 288 i. 192 i. 399 ii. 80 i. 133 i. 340 i. 334 i. 620 i. 390 i. 249 i. 312 Dixon V- Dixon u. Hood .... V. Niccolls . Doane v. Dunham Dolibins v. Clark . Dobschuetz c. Holliday . Dodd V. Gloucester Ins. Co. Dodge V. Coffin . V. Hopkins ... . . V. National Exchange Bank i\ AVoolsey . Doe r. Eslava Doebler v. Waters Doffin ['. Guyer . Doggett V. Emerson !'. Eeam . . Dolan 1-. Green . a. Scanlan Dole r. Stimpson Dollfus V. Froscb . i Domestic .Sewing-Machine Co. r. Arthurlmltz . . ii. 628 V. Walters i. 462 Don !■, Fisher ii. 508 Donald v. Gray .... i. 12 Donnan v. Intelligencer, &c. Co. ii. 6 Donner !', Church .... i. 28 Dooley v. Virginia Fire, &c. Ins. Ci) ii. 832 Doolittle V. Soutbworth . i. 293 Dorman !>. Bigelow . ii. 429 Dorr V. Fisher . . . . . ii. 601 Dorsey r. Abrams ... i. 551 V. Dorsey .... i. 312 Dorwin r. Smith i. 11 Doss f. Missouri, &c. R. R. Co. i. 811 i. ii. a . . n. ii. . ii. 547 i. 5 i. 313 i. 9 611 829 249 766 679 433 313 INDEX OF AMERICAN CASES. CIX Doty V. Heth i. 840 V. Knox County Bank . ii. 702 V. Wilson i. 21 Douglass I}. Branch Bank . . i. CA V. Howland ii. 429 V. Spears i. 278 Douley i\ Tindall i. 321 Dow ii. Jewell ii. 854 Dowling i'. McKennedy . . . i. 2.54 Downer v. Chesebrougli . . i. oil V. Smith ii. 820 V. Thompson ii. 447 Downey v. Hinclunan . . . i. 11, .'3o V. O'Donnell .... ii. 702 Downing v. Funk i. 29 i: Ringer . . . . . ii. 732 Downs V. New York, &c. R. R. Co. i. 812 V. Rock Island County . i. 241 Dows V. Ekstrone i. 605 V. Kidder ii. 475 Doyle c. Glasscock .... i. 13 f. Knapp ii 10 Drake v. Hill ii. 843 Draper v. Douglass .... i. 339 V. Randolph ii. 575 Dresser v. Ainsworth . . . . ii. 501 Dresser Manuf. Co. v. Waterson ii. 5-) I Drew !'. Smith . . . i. 312;ii. 527 Drexler v. Tyrrell ii. 7 DriseoU v. United States . . i. 120 Driver v. Jenkins ii. 7 Drulie V. Christy ii. 219 Drummond v. Hopper . . i. 228, 229 Duble I!. Batts i. 247 Dubois V. Fagan ii. 6 Dudley v. Abner ii. 530 V. Sumner i. 71 Dufief V. Boykin i. 291 Duffy y. Hobson .... ii. 611 Duke V. Sliackleford . . . . ii. 529 V. Strickland .... ii. 7 Dulaglian v. Fitch . . . . ii. 686, 792 Dumont v. Dufore ii. 716 Dunbar v. Dunbar ... ii. 832 V. Pettee i. 329 V. Rawles ii. 528 Duncan v. Charles i. 286 V. Hogue i. 36 V. Stone ii. 527 Duncorab v. New York, &c. R. R. Co ii. 778 Dunkerson, Re i. 107, 289 Dunklin v. Kimball .... i. 14(i Dunlap V. Higgins . . .1. 342 Dunn V. Amos i. 229 v. Brainier i. 554 V. People ii. 747 V. Welsh i. 311 Dunne v. Deery i. 205 Dunning v. Roberts .... i. 102 V. South i. 341 Dupree v. Harrington . . . ii. 529 Durant v. Abendroth .... i. 1.33 1'. Rhener ii. 755 Durfec v. Jones i. 505 Durgy Cement Co. v. O'Brien ii. 487 Durham v. Biscliof . . . . ii. 893 Durkee v. Vermont Central R. Ii. Co i, 101 Dutch V. Mead . . . . i. 247, 218 Dutton V. Gerrish i. 440 Duvall u. Coale ii. 770 Duvoll V. Wilson i. 15 Dyer v. Brannock . . i. 2 ; ii. 339, 340 V. Libby ii. 446 Dyett V. Pendleton .... i. 446 Dykers v. Townsend .... i. 249 Dyson v, Bradshaw .... i. 52 E.tCHO V. Cosby ii. 6 Eagle i:. Smith i. 56 Eagle Co. o. Shattuck . . . i. 265 Earle v. Coburn ii. 575 Earnest v. Parke i. 25 Earp V. Tyler i. 030 East Hartford v. Hartford Bridge Co i. 6 East St. Louis u. East St. Louis Gas Light, &c. Co ii. 733 Easter v. Allen ii. 770 Eastman i;. Crosby .... i. 313 (.'. Patterson i. 607 Eastwood V. Kenyon .... i. 9 Eaton V. Smith i. 334 Ebbinghousen v. Worth Club i. 167, 178 Ebling V. Fuylein i. 360 Eddy V. Livingston .... i. 554 Edelen v. Gough ii. 429 Edenfield v. Canady .... i. 266 Edgerton v. State ii. 754 Edick V. Crim ii. 501 Edmunds v. Wiggin . . . . ii. 509 Edson V. Colburn i. 342 I'. Fuller i. 25 Edwards v. Goldsmith . . i. 285 V. Grand Trunk Ry. Co. . ii. 433 V. N. Y. & Harlem R. R. Co. i. 364 V. The Cahawba . . . i. 706 V. Tipton i. 321 Eggleston v. Watson .... ii. 7 Ehle V. Judson ... . . i. 24 Ekin V. McCracken .... i. 2.33 Elcox V. Hill i. 452 Eldridge v. Hill i. 514, 554 Elevator Co. v. Brown . . . i. 340 Ehason v. Henshaw . . . . i. 35, 43 Elkins V. Parkhurst . . . . ii. 732 Ellett V. Butt ii. 7 Ellicott V. Turner i. 25 Elliot V. Bradley ii. 456 V. Sleeper i. 71 Elliott V. Giese ii. 429 u. Horton i. 321 INDEX OF AMERICAN CASES. Elliott !'. Wood . Ellis V. Clark . u. Crawford V. Deadman V. Esson . V. McCormick V. Park V. Sisson c. State . . Ellison V. Jackson Water Co. V. Jones ... Ellmaker v. EUmaker Ellsworth V. Mitchell Elmore t). Sands . Elphiuk V. Barnes . . Elsberry v. Boykin . Elsey !■. Metcalf . . Elston r. Jasper . . Elting V. Vanderlyn El woody. Western Union Tel. Ely V. Webster . . . Emerson v. Graft . . . V. McNaraara . . Emery v. Chase . . V. Hobson ... .i. Emma Johnson, The . Emmons v. Hinderer . . V. Oldham .... Encking v. Simmons . . English V. McNair . . . V. Ocean Steam Nav. Co. Enley v. Nowlin Enlow V. Klein . Ensign v. Wands Erie, &c. Despatch v. St. Louis Compress Co. . . . Erie, &c. E. B. Co. v. Patrick Erie, &c. Transp. Co. t'. Dater Erskine r. Davis .... Erwin v. Bank of Kentucky . V. Saunders Escott V. White . Eskridge i\ Glover Esmay v. Gorton Essex County Bank v Estabrook v. Gebhart V. Swett . . Estey V. Cooke . Etheridge v. Palin Eubanks r. Dobbs Evans v. English V. Evans . V. Lee ti. Sanders u. Wain . Everett v. Hall V. Vendryes Everman v. Robb Everts v. Agnes Ewing V. Gray . V. Handley . Eycleshimer v. Van Antwerp ii. 30 11. i. '■ ii. . i. 85^ Russell 287, 320 ii. 429 832 770 30 893 i. 7 i. 12 ii. 629 i. 288 ii. 732 i. 812 ii. 532 i. 49 i. 50 i. 234 i. 28 Co. i. 101 ii. 766 i. 37 ii. 829 i. 248 543; ii. 611 i. 706 ii. 8 i. 249 ii. 30 i. 288 i. 706 i. 341 528 i. 134 &c. i. 605 i. 201 i. 767 42 35 25 305 1. 43 248 220 265 829 607 322 i. 203 i. 340 ii. 607 ii. .30 289, 290 i. 108 ii. .527 i. 311 ii. 7 i. 52 ii. 769 i. 203 i. 12 11 11. .; i. 7, i i. i 43, ii. i. ii. 1. Fairbanks v. Davis . . . . ii. 527 V. Metcalf i. 50, 51 Eairchild v. Fairchild . . ii. 6 Fairfield Bridge Co. u. Nye . ii. 472 Falconburg v. Mcllravy . , ii. 770 Fales V. Filley . . . ii. 80 Falley v. Giles . . . i. 290 Falls V. Gaither i. 36, 42 Fame Ins. Co. v. Thomas . . ii. 190 Farley r. Hord i. 205 !•. Pettes i. 294 Farlow v. Ellis ii. 629 Farmer v. Barnes . . . . ii. 607 V. Stewart i. 10 Farmers r. Flint ... i. 26 Farmers' Bank i'. Blair . . . i. 29 Farmers' Loan, &c. C'o. v. St. Jo- seph, &c. R.U. Co. ... ii. 733 Farmers' &c. Nat. Bank v. Lang i. 321 V. Logan . . ii. 528 Farniington Academy v. Allen . i. 13 Farnuni v. Burnett . ii. 6, 7 Farrar ?>. Banon ii. 732 V. Eowly . . . i. 293 Farrell v. Lovett ii, 220 Farrington r. Bullard i. 33 V. Meek i. 620 Farris ?'. Wave . . ii. 820 Farrows v. Haj-es .... i. 322 Fash V. Kavanagh . . . i. 360, 446 Fatherce r. Lawrence . . ii. 343 Fatrow v. Merriwether . ii. 6 Faucett v. Nichols ..... i. 469 Faulkner !-. Hart i. 311 P"awsett !■. National Life Ins. Co. ii. 218 Fay V. Gray i. 322 Fecel V. Guinault .... i. 232 Feeny !■. Daly i. 25 Felcli V. Bugbee . . ii 898 Feldman v. Gamble . . . . ii. 6, 25 Feltman v. Gulf Brewery . . i. 512 Ferguson i. Louisville City Nat. Bank . . ii. 4.j3 I'. Northern Bank . . . i. 605 Ferrie i'. Public Administrator ii. 342 Ferrin v. Myrick . i. 205 Ferris v. Myrick .... i. 206 i: Thaw i. 167 Fertilizing Co. r. Hyde Park . . i. 7 Fessler's Appeal ii. 5 Fetrovv v. Merriwether . . . . ii. 6 Fiegel r. Latnur i. 290 Field V. Brackett i. 509 V. Ins. Co. of North America ii. 123 V. Weir i. 29 Fifield V. Elmer ii. 528 Fifth Nat. Bank v. Bayley . . ii. 456 Fifty Associates v. Grace . . i. 360 Filson V. Himes ii. 762 Findiey v. Findley .... i. 288 Fine v. Hornsby i. 263 INDEX OF AMERICAN CASES. CXI Fiquet v. Allison i. 841 first Nat. Baiili v. Alexander . i. 542 V. Bennington .... i. 172 V. Byard ii. 6 u. Bynum . . . . . ii. 242 u. Caldwell ii. 38 V. Carthage ii. 215 V. Childs i. 17.3 V. Crocker .... ii. 456, 475 V. Crowley ii. 447 V. Dearborn . . . . ii. 456 V. Elmore ii. 6 ■ V. Hart i. 55, 56 V. Hoch i. 172 u. Merchants' Nat. Bank . i. 551 V. Mount Tabor . . . ii. 247 1/. Ocean Nat. Bank . . i. 539 V. Pierson .... . i. 172 V. Reno County Bank . . ii. 218 V. Rex i. 5.39 V. Ricker i. 547 V. Wood ii. 219 V. Yocum ii. 829 First Orthodox Cong. Cli. o. Wal- rath ii. 686 Fish V. Johnson i. 247 V. Levine ... . i. 248 Fisher v. Bowles ... . i. 133 V. Brown i. 108 u. Kyle i. 512 u. Lunger i. G-35 V. May i. 29 V. Meister ii. 6 ti. Parry .... . i. 812 V. Quackenbush . i. 321 Fisk V. Brackett ii. 803 Fitch V. Casler ... . i. 4-33 u. Remer ii. 7G6 V. Snedaker i. 56 Flagg V. Mann i. 36 V. Swift i. 157 Flanagin v. Hambleton . . ii. 843 Flanders v. Maynard ... ii. 529 Fleming v. Easter i. 265 0. Gilbert ii. 854 V. Northampton Nat. Bank i. 539 Flemming v. Flemming . . . ii. 880 Fletcher v. Austin .... ii. 80 B. Drath ii. 501 V. New York Life Ins. Co. ii. 202 (/. Peck i. 4, 5 V. Pierson i. 542 FUnn V. St. John ii. 754 Flint V. Pearce i. 340 Florsheim v. Holt i. 205 Floyd V. Calvert ii. 339 Fogg V. Middlesex Mut. Fire Ins. Co i. 293 Foley V. Cowgill i. 51 FoUett V Rose i. 31 Foot V. Marsh ii. 453 V. Tewksbury i. 229 Foote V,. Sprague ii. 8 Forbes v. Marsh ii. 528 t'. Scannell i. 314 Forclieimer v. Holly . . . . ii. 611 Ford V. Buckeye Ins. Co. . . ii. 766 V, EUingwood i. 15 1'. McVay i. 655 V. Rehman i. 27 V. Russell .... . i. 205 V. State i. 7 Fordyce v. Hathorn .... i. 341 Fore V. McKenzie . . . . ii. 501 Foreman v. Bigelow . . . . ii. 829 Forgay v. Ferguson .... i. 201 Forney v. Shipp i. 1], 33 Forsyth v. Ellis ii. 501 V. Matthews ii. 769 V. North American Oil Co. ii. 829 V. Preer . . . . . ii. 7 Forsythe i'. State ii. 716 Fosdick V. Car Co ii. 530 „. Schall . . . ii. 530, 531 Foss ;;. Nutting ii. 893 Foster v. Bank i. 540 0. Dennison i. 71 V. Gressett ii. 828 V. Holley . . ... ii. 611 V. Lookout Water Co. . . . i. 60 V. Mansfield i. 52 V. Ropes ii. 446 Fowle V. Bigelow .... i. 293 Fowler v. Merrill ii. 24 V. United States .... i. 120 V. Woodward ii. 781 Fox V. Turner i. 37, 43 Frame v. August i. 265 Francesca T., The .... i. 606 Francis v. Shrader . . . i. 514 Francke v. His Wife .... i. 232 Frankenberg v. First Nat. Bank i. 543 Franklin v. Heiser i. 56 Frasher v. State i. 7 Fray v. Voules i. 110 Frazer v. Robinson . . . . ii. 610 Frazier v. Thompson . . . . ii. 762 V. Trow's Printing &c. Co. i. 542 Frear v. Drinker .... ii. 26 Freck v. Locust Min. Coal Co. i. 340 Frederiks v. Fasnacht . . i. 247 Freed v. Brown .... i. 232 Freedman's Bank v. United States i. 120 Freeland v. Heron ii. 607 Freeman v. Boston i. 56 Freeman's Bank v. Perkins . ii. 234 Freer v. Stotenbur i. 339 French v. Carhart i. 293 o. French i. 229 Freund v. Importers' &c. Bank i. 550 Frey v. Drahos ii. 7 V. Fond du Lac i. 21 Fridley w. Bowen i. 173 CXll INDEX OF AMEEICAN CASES. Frierson v. Williams Frigerio v. Stillman Frink v. Thompson Fritchey v. Bosley Frith V. Lawrence V. Sprague Front Street, &c. E. ler .... Frost V. Deering . . V. Plumb . . . V. Woodruff Frostburg Min. Co. v. hind Glass Co. . . Frout V. Hardin . . FuUam v. Valentine . Fuller V. Bean . . . u. Coates . V. Robinson Fulton V. Kobinson . Funderburk i'. Gorham Funk V. Ilougli . . . Furbish i'. Sears . . Furlong v. Barnes . . Furman i*. Parke . . Furth V. Forster . . R. Co New i. 319 1.293 ii. 611 i. Ill . i. 287 . i. 313 V. But- i. 304 i. 71 . i. 612 . ii. 446 Eng- ii. 433, 440 . i. 341 . ii. 832 . ii. 447 . i. 453 . i. 331 . i. 254 i. 206 i. 11, 33 . . ii. . ii. "M) . . i. 56 . i. 738 609 247 . ii. 30 629 ). 1 812 241 508 11 769 Gaff v. O'Neil . . . Gage V. Jaqueth Gaines v. Allen . . . Gaither v. Teague . . Gale i: Delaware, &c. R. R. Co. Galena v. Amy Gallagher v. AVaring . . Gallatian v. Cunningham Galpin v. Wilson i. 234 Gambling r. Read ii. 529 Gammon v. Abrams . . . . ii. 531 Ganter r. Atkinson .... i. 339 Gantly v. Ewing i. 5 Gardner v. Gardner .... i. 64 V. Garrisli ii. 709 v. Maxwell ii. 7 r. Moore ... . . . ii. 6 Garfielde !■. United States . i. 120 Garland v. Lane ii. 475 Garusey v. Rogers . . . . i. 66 ; ii. 6 Garrard v. Moody i. 620 Garrish ». Hyman ii. 611 Garrison v. Combs i. 69 Gass V. New York, &c. R. R. Co. i. 606 Gately v. Irvine i. 323 Gates V. Bliss ii. 829 V. McKee ii. 429 V. Whetstone .... i. 208 Gatewood v. McLaughlin . . i. 339 Gault V. Brown ii. 448 Gavett V. Manchester, &c. R. R. Co i. 811 Gavinzel v. Crump . . . . ii. 575 Gay V. Alter ii. 829 .,. Bates i. 604 Gay V. Rainey i. 319 Gaylor v. Dyer ii. 530 Gaylord Manuf. Co. h. Allen . ii. 508 Gayso v. Delaroderie . . ii. 769 Gazley r. Wayne .... i. .341 Geer v. Archer . . . i. 24, 25 r. Church ... . ii. 530 Gelpcke v. Dubuque i. 291 ; ii. 762 General Hospital v. Fairbanks ii. 576 George v. Harris . . . i. 11, 12, 33 V. Richardson .... . i. 31 V. St. Louis, &c. Ry. Co. i. 232,233 V. Stubbs ii. 527 Georgia R. R. Co. v. McCurdy i. 811 Gerdes v. Weiser . . . i. 202 German Am. Ins. Co. v. Davis ii. 782 German Nat. Bank v. Meadowcroft i. 606 i. 339 ii. 261 608, 610 i. 33 820 11. 1. . 434, 508 ii. 7 120 447 11. Gerrens v. Huhn, &c. Min. Co Gerrish r, Glines Gerst 1-. Jones . Getchell v. Jewett Getty f. Devlin V. Roundtree Gibbons v. Hoag V. United States Gibbs r. Benjamin V. Linaburg Gibson v. Gibson V. McKean . V. Pelkie r. Stevens . Giese i: Schultz Gilbert r. North American Ins. Co. . . . I/. Thompson . . . V. United States . . >'■ Vachon . . r. Wliidden .... Giles i". Ackles . . . . Gilhooly v. Washington . . Gilkey v. Bailey .... Gill V. Bradley V. Kuhn i. 132 Gillett V. Treganza .... i. 339 Gilligan i\ Boardman . . ii. 429 Gilliland !•. Phillips . . .1. 291 Gillis V. Hall .... ii. 686 Gilnian v. Hill ... ii. 447, 448 >: Kibler. . . i. 12, 27; ii. 429 Gilpin V. Temple i. 132 Ginz V. Stuniph i. 320 Girard Bank v. Bank of Pennsyl- vania Township .... i. 551 Girard Ins. Co. v. Stewart . . ii. 843 Gittings V. Mayhew .... i. 13 Glasgow V. Hobbs i. 10 Glass !'. Beach ... . . i. 26 Glidden v. Higbee ii. 611 Globe Marble Mills Co. v. Quinn i. 390 Gloversville Nat. Bank v. Wells i. 173 832 447 i. 36 . ii. 433 . ii. 328 Fire i. 49, 51 ii. 527 119, 292 ii. 754 i. 133 i. 29 i. 446 1.55 ii. 399 INDEX OF AMERICAN CASES. CXIU Gocli V. Sullivan i. 253 Godfrey v. Disbrow .... ii. 25 Goebel v. Hougli i. 378 Goeing !'. Outhouse .... i. 341 Goelet V. Farley i. 205 Golden v. Romer i. 60i Colder v. Ogden ii. 454 Goldsmith v. Sawyer .... i. 331 Golson V. Ebert i. 311 Gonzales v. Broad i. 679 Goodale v. Fairbrother . ii. 528, 529 Goodrich v. Johnson .... i. 271 v. Stanley ii. 847 V. Willard i. 607 Goodwin v. Boston, &c. R. R. Co. ii. 529 V. May ii. 529 V. Owen ii. 5 Goodwyn v. Douglass . . . ii. 475 Gookin v. Graham ii. 501 Goosey v. Goosey i. 288 Gorden v. Robertson . . . . ii. 251 Gordon v. Appeal Tax Court . i. 4 r. Bowne ii. 123 u. Haywood i. 71 u. Inghram i. 4 V. Manchester, &c. R. R. Co. i. 751 Gore, Ex parte i. 56 Goree v. Wilson i. 31 Gottlieb V. Hartman .... 1. 524 Gould V. Banks i. 33 U.Cayuga County Nat. Bank i. 172; ii. 770 Governor v. Gridley .... i. Governors of the Alms House v. American Art Union . . . ii. 747 Gowen V. Klous ii. 429 Gower c. Stuart i. 20.5 Grabfelder v. Willis .... ii. 96 Grafton v. Cumraings . . . i. 254 Graham v. Campbell .... i. 69 V. Chicago, &c. Ry. Co. . i. 746 V. Nat. Bank i. 173 V. Norton i. 241 V. Roder ii. 769 V. Williams i. 313 Grand w. Cox ii. 611 Granger v. Batchelder . . . i. Ill Grant v. Cadwell ii. 510 Graves v. White ii. 828 Gravett v. Mugge ii. 446 Gray v. Cincinnati Southern Ry. Co i. 746 V. Clark i. 288 V. Jackson i. 312 V. Murray i. 36 V. State ii. 247 Green v. Biddle i. 4 V. Boston, &c. E. R. Co. . i. 767 V. Gates i. 322 V. Clarke i. 554 V. Cullen i. 299 V. Day i. 285 VOL. 111. ' &c. Green i'. Hohvay . V. Korneg.Ty . V. Putnam . . !■. Randall . . V. Richardson . V. Rowland . . u. Sizer . . . V. .State . . . V. Van Buskirk Greenbaum v. Megibb Greene v. Godfrey, . V. Hague . . Greenough w.' Turner Greenwood v. Brink Greer v. Kleen . . Gregg V. Pierce . . Gregory v. Burlington Co V. Leigh .... r. I Logan. . . . Gresham v. Morrow . Gridley t\ Tucker . . Grieff i'. Boudousquie Grifiin i'. Carter . . u. Fellows . . . u. Marine Co. . . V. Pugh .... V. Ranney . . . V. Ransdell . . . Griffith V. Ingledew . V. Zipperwiek Grigg V. Landis . . . Griggs V. State . . . Grimes v. Kimball . . V. Van Vechten . Grimmell r. Warner . Grinnell r. Cook . . V. Spink .... V. Western Union Tel. Co, Griswold v. Cook Grocers' Bank v. Murphy Gross V. Kierski Grosvenor r. Chesley I/. New York Central Co. . . . V. Philhps . . Grotgen v. Grotgen Grout V. Hill . . . Grove v. Hodges . Crowning v. Behn . Grubb V. Bayard . Gruman v. Smith . Guard v. Whiteside Guardians of the Poor w Gubbins v. Harper Guest V. Opdj'ke Guernsey v. Cook Guild V. Butler . V. Thomas . Gulden v. G'Byrne Gumbel V. Abrams Gunderman v. Gunnison ii. 611 i. 49 i. 52 i. 205 i. 58 ii. 472 i. 540 i. 2, 7 ii. 531 i. 605 ii. 715 i. 378 i. 71 i. 133 ii. 686 i. 56 R. i. 812 i. 68 ii. 429 ii. 843 i. 33 i. 133 i. 314 i. 340 ii. 6, m ii. 610 i. 390 ii. 475 i. 540 ii. 399 i. 565 ii. 25 ii. 440 ii. 769 i. 607 ii. 847 i. 101 340, 341 ii. 550 ii. 501 R. i. 606 ii. 456 ii. 342 ii. 487 i. 33, 248. 339 . . ii. 24 . . i. 3.39 . . i. 109 . . ii. 832 Nathan ii. 342 ii. 6 340 .69 847 . ii. 80 ii. i. 133, 540 ii. 5 I. n. CXIV INDEX OF AMERICAN CASES. Gunderson v. Richardson . ii. 754 Gunnel v. Cockerill . . . ii. 5 Gunnison v. Bancroft . . 1. 287 Gurvin v. Cromartie . . . .15 Gutzvveller ;>. People . . . i. Guy V. Baltimore .... 1. 007 Guyette v. Bolton .... .21 Gwyn V.' Richmond, &c. R R. Co 11 475 H.4AK V. Linderman . ii. 472, 528 Haas V. Roat .... r.y.i Haase v. Nonnemaclier . . hoi Hackleman v. Harrison 601 Hackley v. Headley . . 780 Hadd V. United States, &c. Exp. Co 767 Haddock v. Woods . 29.3 Hadley v. Citizens' Sav. lust. 321 Hadlock v. Hadlock 1.50 Hagan r. Barksdale . . 1 205 Hagar v. Brainard . . . ii. 7 Hagebush r. Kagland 1 514 Hager v. Thompson . . . 11 769 Hahn r. Fredericks . . . I] 447 V. Hortsman .... 11 680 Haines t'. Haines . . i. 10 V. Thompson . . . ii. 25 Hair v. Little . . . . 11 770 Halbut i\ Forrest City . . 1 2.02 Hale !■. Continental Life Ins. C 0. ii 202 t'. Henderson .... . ii 732 V. Huntley . 11 447 V. Milwaukee Dock Co. 1 005 c. Rice i. 25 V. Wilkinson 11 on Hall V. Boston, &c. R. R. Co. 11 4.54 V. Bradbury . . . i. 69 V. De Cuir 1 74(i u. Draper . . ii 529 u. Fullerton . . 11 829 0. Hinks . 11 530 V. Memphis R. Co. . . 1 812 V. Mulhn 11 732 V. Pennsylvania R. R. Co i 747 V. Pike . ... 1 452 u. Plassan .... 11 509 V. Savage . ... i. 71 V. Tay 1 321 V. Unger . . . i. QO.> 233 V. Wisconsin . . . i. 4 Halleck v. Commercial Ins C( ). i. 42 Hallenbeck v. Cochran . . i. 261 262 Hallesy v. Jackson . . . ii. 5 Halley v. Troester . . 1 232 Halliday v. St. Louis, &c. Ry. Co. i. 795 Hallock V. Commercial Ins. Co. i. 36 Halloran v. Whitcomb . . . ii. 893 Hallowell v. Milne . . . . ii. 529 Halsa V. Halsa ii. 429 Halty V. Markel i. 607 Hamaker n. Blanchard . . . i. 565 V. Eberley .... i. 27, 28, 29 V. Schroers ii. 686 Hamilton v. Beall ii. 769 V. Elstner i. 605 V. Ganyard ii. 508 r. Lubukee ii. 30 (.-. Lycoming Mut. Ins. Co. i. 42 V. Mutual Life Ins. Co. i. 554 V. Kussell ii. 770 i: Taylor . i. 286, 288 V. Tlirall i. 300 V. Wood ii. 251 Hamilton College v. Stewart . . i. 12 Hammond v. Pennock . . ii. 829 Hammonia, The . . i. 747 ; ii. 800 Hancock v. Harper ii. 25 V. Hodgson . ... i. 28 V. Horan . . . . . . ii. 770 V. Rand ... . . i. 453 Hand v. Kennedy i. .59 Hanford r. Obrecht . . ii. 610 V. Rogers i. 286 Hanks i: McKee ii. 508 Hansen v. Dennison ii. 7 Hanway v. Wallace . . . . ii. 628 Harbison ;■. Lemon . . i. 229 Hardee v. Howard . . . . ii. 086 Hardy r. Chesapeake Bank i. 547 i'. Waltham . . . i. 4 Hargous v. Stone . ii. 510, 613 Hargroves v. Cdoke . . i. 27 Harkness v. Burton .... i. .339 Harkreader i-- Clayton ... i. 53 Harlan r. Harlan . . . i. 10 V. Leliigh Coal &c. Co. i. .340 Harlow v. Curtis ... . . i. 35 Harper v. Ely . . ii. 6 r. Gilbert i. 71 V. Goodall i. 079 V. New York City Ins. Co. i. 289 Ilarrell v. Witherspoon . i. 203 Harrington r. Christie . . . ii. 6 o. Cormier . . . . . ii. 447 B. King ii. 528 Harris v. Bradley . . . . i. 605 c. Carraody . . . . ii. 780 V. Currier i. 630 V. Hart . ... ii. 487 V. Jones .... . ii. 7 V. Pratt ii. 487 V. Tumbridge . . i. 100 r. Waite . . . . ii. 508 Harrison ;■. Harrison . . i. 312; ii. 607 0. McClelland i. 69 0. Missouri Pacific Ry. Co. i. 747 V. Nailey i. 254 V. Phillips Academy . . i. 49, 50 V. Ricks i. 340, 341 V. Shanks ii. 602 B. Simons i. 71 Harrower v. Heath .... i. 341 INDEX OF AMERICAN CASES. CXV Harson v. Pike i. 66 Hart V. Barney, &c. Manuf. Co. ii. 530, 531 V. Bray i. 37 II. Carpenter ii. 528 V. Pennsylvania R. R. Co. i. 707 V. Willis i. 319 Harter u. Bomberger i. 21 Hartford Fire Ins. Co. v. Olcott ii. 893 Harlje v. Collins ii. 829 Hartley v. Decker i. 290 V, Varner i. 265 Hartman v. Greenhow . . . ii. iH Hartsell v. Myers i. 321 Hartupee v. Pittsburgh . . . ii. 792 Hartzell v. Saunders ... i. 10 Harvey o. Peaks i. 229 V. Tama County . . . . ii. 847 V. United States . . i. 38, 120 Harvie v. C'larkson . . ii. 532 Hasbrook v. Paddock i. 293 Haskell v. Boardman . . . ii. 234 Haskett v. Flint . . . i. B4 Haskill V. Sevier ii. 6 Hastings v. Ilopkinson . . i. 134 V. Levering ii. 513 V. Westchester Fire Ins. Co. ii. 893 Hatch V. Bayley. ... ii. 440, 769 V. Douglas . 1. 109, 334 ; ii. 744 V. Lincoln ii. 440 Hatchell d. Kimbrough . . . i. 341 Hathaway v. Payne i. 52 Hatter v. Greenlee ii. 780 Hauf V. Duncan ii. 6 Hause v. Judson ... . ii. 487 Hausman v. Nye . . . i. 262, ii. 440 Haviland K. Chace i..l33 Hawes v. Shaw ... . . i. 346 V. Smith i. 285, 288 Hawkes v. Pike i. 49 Hawley v. Farrar .... i. 12, 25 V. Keeler . . . . i. 554 ; ii. 433 Hawthorne v. Bowman . . . ii. 529 Hayden v. Demets ii. 473 V. Strong ii. 218 V. Weldon ii. 219 Hayes v. Kershow ... . . i. 15 V. Matthews i. 69 V. New York Gold Min. Co. i. 390 V. People ... . ii. 340 Hays V. Crutcher . .... i. 69 V. Mouille ii. 487 V. Pennsylvania Co. . . i. 802 Hayward v. Munger .... i. 323 Haywood v. Perrin .... i. 288 i). Rogers i. 840 Hazard v. Abel i. 605 V. Day i. 102 V. Hazard i. 132 V. Manning 1. 620 V. New England Marine Ins. Co i 36 Hazeltine v. Branger ii. 8 V. Weld . ■. i. 606 Hazelton &c. Coal Co. v. Buck Mountain Coal Co i. 288 Heald u. Wright ii. 829 Healey ;;. Gray i. 452 Healy i,-. Young i. 247 Heard «. Dubuque County Bank ii. 242 Heath v. Gold Exchange . , i. 107 V. Hall ii. 30 V. Second Nat. Bank . . i. 172 V. Williams ii. 6 Hebbard v. Haughian . . . i. 248 Heckman v. Manning . . . ii. 832 Hecks V. Hannibal &c. R. R. Co. i. 812 Hedges v. Hudson River R. R. Co. ii. 829 Heffron v. Flanigan ... . ii. 5 Ilegler v. Eddy ii. 629 Heine v. Roberts ... . ii. 531 Hellams v. Abercrombie . ii. 754 Hellman v. Bois ii. 611 Helwege v. Hibernia Nat. Bank i. 550 Heminy v. Ramsey . . i. 29 Henderson v. Cansler . . . ii. 686 V. Johnson . . . . ii. 429 !'. Rost i. 288 ti. United States ... i. 120 I-Iendrick i-. Lindsay . . . i. 58, 64 Hendricks v. Sixth Ave. R. R. Co. i. 746 Hendrix v. Gore . . . . . ii. 7 Henroid o. Neusbaumer . . ii. 829 Henry v. Jackson i. 107 V. Patterson . . ii. 528 V. Ritenour i. 229 Henry County a. Winnebago &c. Drainage Co . i. 304 Henshaw v. Robins . . . . ii. 513 V. Root i. 542 Hensley v. Baker ... . ii. 602 Hepburn v. Snyder . . . i. 293 Heppe V. Speakraan . . . ii. 628 Herkimer u. Nigh i. 321 Herman v. Deming ii. 7 Hermann ;;. Adriatic Fire Ins. Co. ii. 188 Herrick v. Randolph . . i. 4 Herries v. Norvell i. 687 Herring v. Hoppock . . . . ii. 528 Herrman v. Merchants' Ins. Co. ii. 188 Herschfeld i-. Dexel .... i. 312 Herskell I'. Bushnell .... i. 341 Hertz !). Wilder ii. 715 Hertzog v. Hertzog . . . . ii. 675 Hervey t'. Gay i. 378 V. Rhode Island Locomotive Works ii. 631 Heryford v. Davis i. 288 : ii. 530, 631 Hetzell V. Gregory . . . . ii. 611 Hewes v. Jordan ii. 433 Hexter v. Knox i. 378 Heywood v. Heywood . . i. 288 V. Perrin i. 280 CXVl INDEX OF AMERICAN CASES. Hibernia Nat. Bank r. Lacombe i. -.in, 543 Hickman v. Alpaugh .... i. 314 i: Tlioinas i. 607 Hicks V. Burhans . ... i. 21 V. Goods i. 51 V. Skinner ii. 51)2 V. Stone . . . . . ii. 7(j'.j Higgins V. Chessman . . . ii. 447 V. Missouri, &c. R. R. Co. i. 286 v. Wasgatt i. 285, 288 Highland County v. Rhoades i- 38 Hilbourne v. Fogg .... i. 346 Hildreth v. Pinkerton Academy i. 11 Hildretli v. Shepard ... i. 3M Hill u. Freeman ii. 530 u. Goodrich i. 32it V. Grigsby .... . i. 314 V. Hartford Accident Ins. Co. ii. 204 V. Huntress ... . . i. 280 u. Kricke . . . u. Roderick . . . V. Smith .... V. Spencer . . . V. Taylor . . . Hills V. Sneli .... Hilton V. Adams . . V. Southwick . . Hind V. Holdship . . Hindert v. Schneider . Hine v. Roberts . Hinesburgh v. Sumner Hinton c. Locke Hirsch i\ Trainer . . Hirscbfelder v. Mitchell Hirschorn v. Canney . Hitchcock V. Litchfield Hixon !■- Hetherington Hoagland v. Segur Hobbs i;. VVetherwax Hoboken v. Bailey . Hobson V. Woolfolk Hoe V. Sanborn Hodges V. Hurd V. Kimball . . Hodgson ('. De.xter Hodson V. Warner Hoge V. Hoge . . Hoig V. Adrian College Holbrook v. Chamberl Holker v. Parker . Holland v. Drake . HoUingsworth r. Fry Hollis V. Chapman HoUister r. Loud . V. Noland . . Holm I'. Wrest . . Holmes r. Abrahams !;. Hnll . . . V. Holmes . . V. Martin . . V. Rogers . . 27 290, i. 4 . i. 33 ii. 732 i. 169 i. 330 i. 605 i. 452 i. 10 . i. 31 . i. 28 ii. 528 ii. 723 329, 334 . i. 50 ii. 627 . i. 21 ii. 843 ii. 087 i. 341 . i. 21 i. 524 ii. 601 i. 554 ii. 456 i. 127 ii. 628 . i. 20 . i. 62 i. 390 i. Ill i. 146 285, 293 304, 306 ii. 769 i. 730 ii. 38 . ii. 7 ii. 781 ii. 341 i. 289 i. 110 Holoman i-. State ii. "47 Holsapple v. Rome, &c. R. R. Co. i. 768 Holt V. Holt ........ ii. 627 Holtzman i>. Millaudon . . . ; i- 36 Home V. Woolsey . . . ii. 715 Home of the Friendless v. Rouse i. 4, 292 Homes v. Dana .... . . i. 13 Iloneyman v. Jarvis . . • i- 29 Hook V. Fink ii. 686 V. Gray ii- "16 Hooper !'. Moore i. 313 V. Strasburger . . . . ii. 829 Hoops V. Atkins ... ii. 611 Hoover v. Miller i. 290 V. Pierce 11. 715 V Tibbetts ii. 487 Hopkins v. Morgan .... i. 205 c'. Upshur i. 13 V. Young i. 293 Hornbeck p. Westbrook . . . i. 64 Horsey v. Hough ii. 30 Hoskins V. Rhodes .... i. 340 Hoskinson v. Eliot . . i. 146 Hosmer v. Carter ii. 7 Hotchkiss V. Cox .... i. 2-54 !■. Fortson .... i. 229 i\ Hunt . . . . IToudlette r. Tallman Hough u. Hunt ... . . i !■. People's Fire Ins. Co. . i V. Richardson ... . ii Houghtailing v. Ball . . i Houghton v. Watertown Fire Ins Co ii Houghwout V. Boisaubin . i. 3 House V. Fort .... Houser r. TuUy . . Houston V. Bogle . . ii. 527 ii. 446 i. 232 i!605 ii. 829 i. 314 Howard v. Bugbee f. Carpenter .... u. Hildreth ... V. Hoey !■. Holbrook !'. Ives . ... u. Jones Howard Nat. Bank v. Loomis Howe V. How . . . . V. Huntington .... V. Meekin ... V. O'Malley .... Howe Machine Co. v. Howell V. F"ountain . . V. Morlau .... V. Western R. R. Co. Howenstein v. Dames Howes V. Barker . . . Howie V. Rea .... Howland v. Blake . . . ii. 187 35, 36 ii. 508 i. 452 . i. 4 V. Dyche " ii. 520 Houston, &c. Ry. Co. v. Mitchell ii. 789 How V. Richard .... . . i. 31 . i. 5 . i. 36 ii. 26 ii. 608 ii. 429 ii. 234 ii. 219 i. 173 . i. 64 i. 249 i. 509 . i. 33 i. 462 ii. 715 605, 606 . ii. i. 312 i. 285 ii. 608 i. 254 Pease INDEX OF AMERICAN CASES. CXVU Howland v. Lounds i. 56 Howley v. Whipple .... i. 101 Howry v. Callowey .... i. 655 Hubbard u. Bliss ii. 530 (>. Coolidge i. 31 V. Knous i. 71 V. Marsliall i. 322 Hubbell V. Drexel ii. 76 V. Inkstein ii. 342 Hudson V. Kansas Pacific Ry. Co. i. 812 Hudson Canal Co. v. Pennsylvania Coal Co ii, 782 ii. 575 ii. 218 i. 290 i. 341 ii. 26 Hudson, The . . Hueske c. Broussard , Huey V. Grinnell . . Huff V. Watkins . . Hugh V. Ottenheimer Hughes V. Blackwell , Huidekoper v. Locomotive Works ii. 530 Hull V. Adams i. 286 i. 314 ii. 30 i. 299 ii. 9 . i. 29 i. 6.55 i. 706 i. 286 ii. 501 i. 287 i. 312 i. 286 . ii. 7 ii. 829 ii. 532 i 289 ii. 220 i. 285 ii. 806 ii. 528 261, 543 ii. 475 ii. 601 ii. 532 453, 486 i. 341 . i. 29 i. 293 ii. 527 . i. 42 . i. 71 ii. 447 339, 341 ii. 453 i. 286 i. 311 ii. 508 ii. 243 ii. 447 i. 459 ii. 30 V. Augustine . V. Bliss . Hummel v. Siddal . Humphreys v. Norton Hund V. Geir . . . Hunsueker v. Elmore Hunt V. Cleveland . V. Frost . V. Hackett . . V. Johnson . . V. Jones . . 17. Livermore . V. Shackelford V. Stuart . . V. Wyman . Hunter v. Anthony u. Henninger . V. Miller . . . 'v. Moul . . . V. Warner . . V. Wetsell . . V. Wright . . Huntingdon v. Hall Hurd V. West . . Hurff V. Hires . . Hurtt !'. Woodland Husband v. Epling Huse V. Hamblin . Hussey v. Thornton Hutcheson v. Blakeman Hutchings v. Talbot Hutchins v. Gilchrist . V. Kimmell . . . Hutchinson v. Hunter Huttemeier v. Albro . Hyatt r. Bank of Kentucky o. Boyle . . V. Hyde . . V. Lathrop . V. Taylor . . V. Warren . Hyatt V. Woods ... i. 107 ; ii. 550 Hyler v. Nolan i. 320 Hynds «. Hays ii. 762 Hynes v. McDermott i. 2 ; Ii. 339, 340 Hyslip V. French ii. 829 I. H. Starin, The . ... i. 607 Ida, The i. 285, 287 Ide V. Stanton . . . . . ii. 429 Igleliart v. Wolfin . . . . i. 5 Illinois Central R. R. Co. i'. John- son i. 331 u. United States . i. 119 Ilsley V. Stubbs ii. 487 Irahoff V. Witmer .... i. 230 Inches v. Leonard ii. 26 Indianapolis, &c. R. R. Co. u. Horst i. 739 V. Morris i. 155 Indianapolis Ry. Co. v. Maguire ii. 453 Inge V. Bond ii. 501 IngersoU v. Baker . . . i. 265 Ingoldsby r. Juan . .... i. 71 Ingrahara v. Grigg i. 49 Inskeep v. Lecony ii. 714 Insurance, &c. Co. v. National Bank i. 340 Insurance Co. v. Kiger . . i. 604 V. Railroad Co. . . . i. 796 I/. St. Louis, &c. Ry. Co. . i. 767 Irons V. Kcntner . . . . i. 605 Ives V. Hartley . . . i. 604 V. Jones . . . . ii. 716 Ivey V. Lalland . . . ii. 766 Ivinson v. Althrop ii. 686 Jacks v. Nichols i. 311 Jackson r. Brownell . . . i. 341 V, Catlin . .... i. 51 V. Cleveland i. 49 V. Dunsbagh .... i. 286 V. Evans i. 253 (,-. Foote ii. 744 u. JIcKenny i. 286 u. Miller i. 320 V. Perkins i. 49 V. Phipps i. 49 V. Pierce ii. 26 V. Reeves i. 290 u. Rhem ii. 342 V. Roberts ii. 194 V. Rowland i. 52, 53 V. Sheldon i. 51, 52 V. Slater . . .... ii. 26 Jackson Ins. Co. v. Sturges . i. 542 Jackson School Township v. Far- low i. 247 Jacobs V. Cunningham . . . ii. 611 V. Spoflford ii. 611 Jacox V. Jacox i. 234 CXVlll INDEX OF AMERICAN CASES. R. R. Co Jaffe V. Harteau . . . Jalie V. Cardinal . . . James !'. Blauvelt . . u. Fulcrod V. Vanderheyden James's Appeal . . . James Jackson, Tlie . James River v. Littlejolm Jameson v. Gregory . . Jamison v. Ludlow Janvrin v. Exeter V. Fogg . . . Jarratt v. IMcDaniel Jarvis v. Peek V. Sutton Jay V. Carthage Jeffrey r. Grant . . . Jelks I'. McRae . Jemmison r. Ray . . Jenkins v. Culpepor County o. Eichelberger ('. Kelren t/. Motlow . . . V. Nat. Village Bank Jenners r. Howard Jennes !■. Jit. Hope Iron Co. Jenness r. Lane Jewell V. Center ['. Chicago, &c, Jewelt, lie V. Warren . Joest V. Wihiams John M. Welch, The . Johns V. Fritehey V. Jolms .... Johnson v. Anderson . V- Blasdale . V. Coddea . . . V. Cuttle .... u.TloM . . 0. Higgins . . V. Hoffinan . . . V. Johnson . . . V. La Varietc . . V. McDonald o. McLane . V. Kational Bank V. Nations . . . V. Nordyke . V. Pollock . V. Ramsey . V. Robertson (/. Sellers 0. Speer . . V. Stoddard. Johnston v. Morrow r. United States Johnstown !■. Charlottesville Bank . . . Jones V. Berkshire u. Bush . . I,. Emery 366, 446 i. 453 ii. 610 i. 11, 83 i. 52 . i. 205 . i. 735 . i. 323 ii. 532 . i. 25 . i. 5G ii. 611 ii. 7 . i. 33 . i. 211 1. 32J i. 2b5 . i. 12 ii. 68B i. 211 ii. 52H i. 60 i. 554 1.539 i. 220 . i. 43 ii. 843 i. 314 i. 811 . i. 133 ii. 447, 473 i. 22U i. 607 i. 22'.l 1. 11 ii. 7 212 u. b 434, 440 i. 655 . i. 6 i. 340 ii. 342 i. 107 i. 133 ii. 532 i. 173 . ii. 25 ii. 6 i. 321 321, 322 i. 331 i. 287 ii. 242 ii. 475 . ii. 7 . i. 59 Nat. i. 172 ii. 770 . i. 49 ii. 709 Jones ;■. Jenkins . . . . i. 205 V. Jones . . i. 232; ii. 610 V. Knauss i. 248 a. Lynds i. 38 <•. Le Tombe i. 127 < . Marcy i. 252 c. Mechanics' Bank . . . ii. 440 t'. National Building Assoc, ii. 776 V. Overstreet . . . . i. 286, 330 V. Palmer ii. 429 V. Parker ii. 6 0. Pearce ii. 146 u. Perkins . . . . ii. 847 1. Phcenix Bank .... i .50 (•. Schuelmeycr . . . ii. 7 V. Sharp i. 321 V. Shaw . . . . . 1. 6 Jordan v. White . . . ii. 843 Jerdon r. Dobson . . . il. 769 Joslin v. N. J. Car Spring Co. . . i. 59 Josslyn V. McCabe . . i. 390 Joyner v. Farmer . . . ii. 30 Judah r. Trustees, &c. i. 131 ; ii. 715 .Judd ?'. Ensign . . . i. 286 Justice r. Tallman . i. 265 Juvenal v. Jackson i. 49 Kaahle !'. Sneed . i. 304 Kalleubaeh r. Dickinson . ii. 880 Kansas Valley Nat. Ban k; •. Row- ell . ... . . ii. 7 Kantsky v. Atwood . . i. 363 Karmuller v. Krotz . i. 293 Karr v. Porter . . . i. 58 Kalz r. Moore . . . . i. 25 Kaufman i-. Stone ii. 446 Kay V. Curd . . . . ii. 429 Kealing v. Van Sickle ii. 219 Kearney v. Vaughan . . ii. 714 Keeler v. Vandcwer . . ii. 447 Keeley v. Boston, &c. R. R Co. i. 812 Keep r. Goodrich . . i. 11, 33 V. Indianapolis, &c. R. R. Co. i. 795 Keeter v. Wilmington, "io. R. R. Co i. 747 Kein v. Tupper . . . ii. 447, 453 Keiwert v. Meyer . i. 262 Kelleher r. Tisdale i. 1.32 Keller r. Webb . . i. 322 Kelley v. Upton . . . i. 2.S8 Kellogg !'. Clark . . 1.271 e. Frazier . . . . ii. 7 V. Griswold . . . . i. 132 c. Lovely . . . . ii. 50 V. Sweeny . . i. 453, 469 V. Wood . . . .ii. 26 Kelly, Matter of . i. 66 V. Bronson . . . . i. 321 V. Davis . . . i. 319 V. Hannibal, &c. R. R. Co. i. 811 INDEX OF AMERICAN CASES. CXIX Scott Co. i. 315, Kelly V. Mills . . . Kelsey v. Kendall . Kemble Coal, &c. Co Kemp V. Walker Kenan v. HoUovvay Kendall v. Hughes . Kennedy v. Cochrane V. Cotton . . , V. Davis . . . u. Morrison o. Williamson . . Kenny v. Ingalls . . Kentucky Mut. Insurance Jentes . .... Kenyon v. Smith . . Keough V. Scott County Kerchner v. Mcllae . Kermott v. Ayer . . Kerr v. Birnie V. Simmons Kerwin, Ex parte . . Kessler u. Hall . . Ketcliam v. Brennan . Kid V. Mitchell . . . Kidder v. Chamberlain Kiersted v. Orange, &c. R. R. Co. i, Kilbourne v. Bradley . . . Kile V. Johnson ... . . ii. Kilgore v. Moore . . . . i. Kille V. Ege ... Kimball v. Jackman . ii, Kimbell v. Moreland i, Kimberly v. Patchin . . . . il Kimmell v. Burfeind . i Kincade v. Conley . i, Kincaid v. Eaton King V. Bates ii, V. Cohorn ii, V. Edmiston i, V. Ham 1, V. Kelly i V. Jarman i, I'. Moon ii, V. Buckman ii. V. Summitt i, V. Upton ... ... Kinney, Ex parte . . . . V. Consolidated, &c. Min. Co, V. Kiernan .... ii. V. McDermot ii. Kinsley v. Lake Shore, &c. E. R. Co i. Kinyon v. Stanton . . , . . i. Kirk V. Dodge County Mut. Ins. Co ii. Kirkpatrick v. Taylor Kitchen v. Spear ii. Kittle V. St. John i, Kittridge v. Waldron .... Kleekanip v. Meyer .... i, Klein v. French ii. . 288 . 527 . 340 i. 50 i. 11 . 709 . 765 i. 11 i. 29 . 610 . 607 . 529 1.42 . 3U i. 21 . 205 , 331 1.49 4US 854 205 529 770 i. 31 . 861 i. 26 ,611 ,208 i. 49 , 527 , 287 .453 .446 .208 i. 56 527 , 769 ,264 , 133 .249 ,261 . 769 . 399 .265 i. 28 i. 7 .610 829 754 739 542 . 215 i. 15 ,487 .408 i. 21 .542 , 893 Klein v. Glass . . V. Horine . . V. Insurance Co, Klinch V. Price . Kling V. Sejour . . Klock !'. Walter . Klohs r. Klohs . . Knapp V. Mills . . Knecht v. Mutual Life Ins. Knight V. Dunlop . V. Houghtalling u. Indiana Coal, &c. Co, V. Mann . . . Knobb V. Lindsay . Knott V Stephens Knower v. Emerson Knox V. Cleveland . r. Clifford Knox County v. Aspinwall Ko(;h V. Dunkel Kohl V. Lindley . . Kohler v. Hayes Kohn V. Koehler . V. Renaisance . Kornegay v. Spicer Koser, Ex pane . . Kountz B. liolthouse Kramer v. Sandford Krauser v. Ruchel Krohn r. Bantz . V. Sweeney Kromer «. Helm Kronskop v. Shontz Kuhlman v. Blow Kuns V. Young Kupfer V. Bank of Galena. Kurtz V. Frank .... ii. 7 , 769 .207 .312 .313 Co. 11. i. 230 i. 29 ii. 204 . ii. 448 ii. 776, 829 . i. 339 . ii. 433 i. 31 . ii. 399 . i. 288 i. 4 . i. 322 i. 241 i. 321 446 529 747 313; ii. 766 ii. 30 ii. 754 i. 59 ii. 234 i. 169 i. 261 i. 453 ii. 847 ii. 251 i. 655 i. 28 i. 540 ii. 328 L. J. Faewell, The .... i. 713 Laborde v. Assoc i. 547 Lacy V. Dubuque Lumber Co. i. 69 V. Green . . . . i. 288, 293, 334 Ladd V. Smith i. 408 Laidley v. Bright .... ii. 215 Lain v. Gaither i. 514 Laing v. Lee ii. 429 Laird v. Hodges .... i. 311 Lanib v. Donovan i. Lamore v. Frisbie . . . . ii. Lampton v. Haggard .... i. 330 Lancaster County Nat. Bank v. Smith i. 539 Landers v. Watertown Fire Ins. Co ii. 195 Landon v. Litchfield . . 1. 4 Landrum v. Union Bank . . ii. 30 248 754 Lane v. Dolick .... V. Maine Mut. Fire Ins Langdale v. People Lanigan v. Kille . . . Lankton ;;. Stewart . . i. 71 Co. ii. 185 i. 286 . i. 358 . ii. 847 cxx INDEX OF AMEEICAN CASES. Lansing v. County Treasurer . i. 241 La Point V. Scott ... i. 341 Larimer v. McLean County . i. 21 Lartnon v. Jordan . . . i. SB Lasher v. ,St. Josepli Fire, &c. Ins. Co . ii. 190 Latlirop V. Page . . . ii. 847 V. Rogers . . i. 34'J Laudry v. J)elas . . . i. 205 Laugiilin v. Braley . . ii- 7 Laurence v. Gallagher . . i. 334 Lavender v. Hall .... i. 252 Lawrence v. Dana . . . i. 286, 287 V. Parley i. 49 < . Gallaglier ii. 782 u. Howard . . . . . i. 452 y. MeCalmont . . i. 31, 287, 289 V. Merriiield .... i. 1.34 V. Miller ii. G97 V. Mutual Life Ins, Co. . ii. 204 ,j. Willis Lawson v. Farmers' Bank Layton v. New Orleans Lazear v. Union Nat. Bank Leabo v. Goodes Leach v. Greene V. Keach V. Shelby Leaird v. Smith . Learning v. Wise . . L'Amoureux r. Crosby Leatherberry v. Odell Leavitt v. Lamprey . . . f. Palmer . Leavy v. Kinsella . . Lee V. Highland Bank . . . V. Hills . . u. Newman ... u. Overstreet ... c. Pittsburgh Coal, &c. Co, 1. i 172, . ii. V. Reed .... V. Ware .... Lee Lin v. Terre Haute, &c. R Co. . . . Leech w. Harris Lefaver i'. Mires . . . Lefevre v. Haydel Le Fevre !.•. Le Fevre Leflore v. Justice Leggett V. Hyde V. Jones .... Lehigh Co. v. Field Lehman v. Marshall . V. Skelton . . ij. Tallassee Manuf. Co, Lehow V. Simonton . Leigh V. Mobile, &c. R. R. Co Leisherness v. Berry . Leland v. Sprague . . Lemester v. Burckhart Lemmons v. Flanakin 238 234 !. ij .321 843 ii. 893 .11,33 i. 320 ii. 399 ii. 829 i. 230 i. 592 i. 71 ii. 715 i. 607 i. 203 i. 261 i. 265 ii. 686 i, 168, 169 ii. 607 i. 229 R. 92, 795 i. 107 ii. 472 ii. 6 ii. 854 ii. 508 i. 133 ii. 215 ii. 528 ii. 6 i. 605 ii. 247 i. 58 ii. 446 ii. 472 i. 342 i. 10 i. 285 Lender v. United States . i. 119, 120 Lent V. Padelford i. 10 Leonard v. Dunton . . . i. Gl)4 u. Fowler . . . . . ii. 513 V. New York, &c. Tel. Co. i. 101 V. Phillips ii. 251 V. Vredenburgh .... i. 12 Leopold V. Van Kirk . . . . ii. 508 Lesinsky u. Great Western De- spatch . . i. 795 Lessley v. Phipps . . . . i. 289, 291 Lester v. East . . . . ii. 446 V. Matthews i. 205 Levy ;;. Brown i. 110 V. Cohen i. 42 Levy ii. 893 133 i. 679 . ii. 454 . ii. 429 . i. 102 ii. 2!8, 220 ii, 528, 531 ii. 30 . i. 311 i. 172 i. 254 i. 772, 795 Linahan i: Barr i. 390 Lindsey v. Rutherford . . . ii. 732 V. Veasy . . . ii. 828 Line r. Nelson . . . i, 29 Lines v. Smith ii. 501 V. Lock u. Loeb . . . V. Loundes . V. Merrill . . Lewis r. Browning r. Dunlap V. :\rcCabe !•. Wells ... i,W<.odfolk . . Libby r. Union Nat. Bank . . Liddle V. Needham . . . Lin f. Terre Haute, &c. R. R. Co. Linghani v. Eggleston Linton v. Butz . Linville v. Holden . . List V. Cotts . Lister v. Clark . . Litchfield r. Irvin Lithgow r. Kavenagh Litterel v. St. John Little V. Fossett V. Page . . . Littlefield v. Coombs Littlejohn p. Patillo Live Yankee, The . Liverpool, &c. Steam of ... Livingston v. Arrington 0. Gaussen . V. Moingona Coal V. Rogers Lloyd V. Giddings r. Wright . Loch V. Weis Locke V. Huling V. Humphries V. S. C. & P. R. Co. Lockett V. Hill . . Lockwood V. Thome Loew V. Stocker Co, Co, Matter ii. 447 ii, 440 1. 322 i, 340 ii. 848 ii. 789 i. 71 ii. 528 i. 554 ii. 529 ii. 251 i. 706 . i. 713 . i. 290 . i. 205 . i. 340 11, 21, 33 i. 51 . ii. 440 i. 59 . i. 315 . i. 264 . i. 287 . ii. 30 . ii. 607 . 1180 INDEX OF AMERICAN CASES. CXXl Logan V. Dils ii. 611 V. Mathews i. 25 V. Tibbott i. 280 Logansport v. Blakemore . . i. 38 Logansport, &c. K. R. Co. v. Cald- well i. 330 Long V. Colburn i. 69 V. Hickingbottom . , . ii. 501 V. Sliackleford . . . i. 29, 205 Longstreet v. Springer . . . ii. 575 Lonkey v. Succor Mill, &c. Co. i. 1B8 Lonsdale v. Brown . . i. 21, 25, "27 Loomis I'. Newliall .... i. 25 Loper & Reybold v. United States i. 323 Loring v. Boston i. 56 Lotlirop V. Foster i. 71 V. Otis ii. 513 Lottawanna, The i. 314 Louges V. Kennedy .... i. 330 Louis V. Brown ii. 686 Louisiana Nat. Bank v. Citizens' Bank i. 550 Love V. Payne i. 157 Lovejoy v. Richardson . i. 71 Lovett V. Brown i. 1)20 Low v. Anderson ii. 7 i-. Merrill . . . . ii. 251 Lowber v. Le Roy ii. 781 Lowe V. Bliss i. 331 V. Bryant i. 9 V. Weatherly i. 27 Lower V. United States . . . i. 241 Lowry v. Commercial, &c. Bank ii. 571 «. Francis i. 4 V. McLane ii. 829 Loyd V. Hannibal, &c. R. R. . i. 811 Lozear v. Shields . . . . i. 232, 233 Lucas V. Campbell . . . . ii. 530 0. Ladew . . . . . i. 315 V. New Bedford, &c. R. R. Co. i. 811 Luce V. Zeile i. 264 Lucesco Oil Co. v. Brewer . i. 290 Ludlow V. Van Rensselaer . . i. 313 Lueders u. Hartford Life, &c. Ins. Co ii. 202 Lufkin V. Curtis i. 71 V. Preston i. 342 Lungstrass v. German Ins. Co. i. 42, 43 Lunt V. Boston Co. . . . ii. 123 Lusk V. Belote i. 452 Lycoming Ins. Co. v. Barriger . i. 132 Lydick v. Baltimore, &c. R. R. Co ii. 697 Lyell V. St. Clair County . i. 241 Lyman «. Babcock . . . . ii. 6, 686 Lynch v. Goldsmith . . ii. 219, 242 u. Metropolitan Elevated R. R. Co i. 799 Lynds u. Winkler ... ■ . ii. 529 Mabin v. Coulon . . . ii. 732 McAllister v. Hoffman . . ii. 716 u. Plant .... . . ii. 30 McAlpin V. Powell . . . i. 366, 446 McArthur v. Slauson . . . i. 679 McAuliife v. Mann . . i. 390 McBee v. Loftis . . . i. 339 . . i. 330 McCabe v. Moorehead . . ii. 501 McCall V. Powell . . . . ii. 630 McCann v. Lewis . . i. 28 McCarteney v. Wyoming Bank i. 69 McCarthy v. Nash . . . . ii. 434 V. Pope .... . i. 253 V. Wolfe .... . . i. 607 MoCarty v. Chalfant . ii. 7 V. Straus . . . . . i. 248 McCauley v. Brooks . . . ii. 733 0. Gordon . . ii. 251 McCausland, Re . . ii. 339 McClain v. Davis . . i. 2.32, 233 McClary u. Sioux City, &c. R. R. Co . . i. 761 Maclay i,-. Harvey . . i, 42, 43 McClelland v. Nichols . . . ii. 529 . . i. 146 V. Reynolds . . . . . i. 69 McClintock o. McClintock . ii. 5 McClue V. Watertowu Fire Ins. Co . . ii. 188 McClung V. Kelley . . ii. 446, 508 McClure v. Jeffrey . i. 247 McClurg V. Terry . . i. 36 McCook V. Cousins . . i. 341 McCormick v. Drummett . . i. 253 V. Hadden . . . . . ii. 5.30 V. Littler . . . . . i. 234 McCoy V. Artcher . . ii. 501 V. Erie, &c. Transp. ( :o. . i. 334 V. Hock .... . i. 607 V. Lockwood . . . . ii. 261 McCracken v. Hayward . . i. 4, 5 McCrae v. Young . . . ii. 446 McCranie v. Wood . . . i. 624 MeCrea v. Purmort i. 278, 320 McCrillis v. Carlton . . ii. 829 McCurdy v. Rogers . . i. 36 McDaniel v. Wright . . . i. 312 McDaniels v. Whitney . . i. 290 McDonald v. Bennett . . . i. 607 V. Morton . . . . . i. 229 McDougall v. Elliott . . . ii. 454 McDowell V, Hendrix . . i. .340 V. Laev .... . . ii. 843 Mace V. Putnam . . ii. 754 McEldery v. McKenzie . i. 206 McElroy v. Ludlum . . i. 252, 271 McElven i: Sloan . . . . i. 26 McFarland v. Farmer . . . ii.627 McFarlin o. Stinson i. 69, 205 McGee v. Fitzer . ii 7 V. Mathis . . i. 5 cxxu INDEX OF AMERICAN CASES. McGinn v. Butler i. 524 McGoldrick v. Willets McGuverii i-. Boukins . McGreal ;;. Wilson McGregory v. Prescott McGuagliey i-. Latham McGuire !■. Van Pelt Mcllvaine v. Hilton Mclntosli V. Lytle . Molntyre v. Carver V. Parks . . . McKay v. Gillian . MclCee v. Myers V. United States McKelvey v. Tate McKelvy v. Wilson McKenzie v. Culbreth McKesson v. Sherman McKimmey v. McKimmey .44 ii. 528 792 716 249 266 . 30 462 542 587 319 ii. 6 1.203 i. 120 i. 25 i. 29 ii. H47 i. 320 i. 655 II 532 i. 271 i. 31 ii. 732 i. 605 ii. 501 ii. 434 i. 339 Harbert . 1{ McKinley v. Watkins ... i. 29, 35 McKinney i'. Bradlee . V. McCloskey . . !'. Pinckard . . . McKissick i\ McKissiek Macklin v. Frazier . McKnight v. Devlin u. Dunlop u. Kretitz . . . V. Watkins i. 59 McLain i'. Huffman . . i. 524 McLane v. Paschal . . . ii. 30 McLaughlin v. Ccsgrove . . ii. 6 McLean County Coal Co. c. Len- uon i. 340 McLellan v. Cumberland Bank i. 285 McLeod V. Tutt . . ii. 508 McLoon V. Commercial, Co. McMahan McMahon r. Third Ave McMannis v. Kice . . McMillan Co. . McMorris v. Herndon McNabb v. Loekliart McNamara n. Culver McNeil V. Hill i. 605 V. Kendall i. 360 V. Tentli Nat. Bank . . ii. 528 McNulty V. Prentice Macomber v. Parker . ii. 440 McPeck V. Moore . . . i. 066 McPherson v. Cox ... . ii. 780 McShane v. Richardson . . ii. 829 McSparran v. Neeley .... i. 229 Mactier v. Frith . . . i. 35, 36, 42, 43 Madan v. Covert i. 604 Maddox v. State .... i. 655 Madera v. Jones . . . i. 291 Madison Ins. Co. v. Forsyth ii. 732 Madison, &c. Plank Road Co. v. Stevens 1. 51 11, &c. Ins. . . ii. 123 . . i. 205 {.R. Co. i.812 ii. 5 Michigan, &c. R. R. i. 36 i. 25 i. 554 Magee v. Street ii. 508 Magee Furnace Co. v. Boston Soap- stone Furnace Co. . i- 543 Mager v. Grottendick ... ii. 6 Maghee v. Camden, &c. R. R. Co. i. 330 Magill V. Hinsdale .... i. 69 Magniac v. Thompson . i. 15 Magruder r. Gage . . . ii. 475 Maguire v. Maguire .... i. 2, 7 Mahoney v. Mackubin ... ii. 7 Mahoney Min. Co. c. Anglo-Cali- fornian Bank . . i. 168 Maigley v. Bauer . . i. 248 Makepeace v. Harvard College i. 286 Malcolm ;-. Tallin m . ii. 6 Mallory v. Tioga R. R. Co. . . i. 286 Manahan v. Noyes . . ii. 829, 843 Mandeville i'. Reynolds . . . i. Ill Manhattan Brass, &c. Co. v. Sears i. 133 Manhattan Life Ins. Co. v. Craw- ford i. 49 Mann v. iEtna Ins. Co. . i. 146 V. Burges . . ii. 30 V. White River Log, &c. Co. i. 745 V. Witbeck i. 286 Manning v. HoUenbeck i. 462 Mans I'. McKellip .... ii.6, 8 Mansfield I'. Watson . i. 228, 229, 230 Mansfield, &c. R. R. Co. v. Veeder i. 288 Manter v. Churchill ... i. 28 Mapes V. Scott . . i. 173 Marble v. Moore ii. 446 Marcey v. Dunlap . . ii. 5 Marie v. Garrison .... i. 11 Marietta r. Fearing .... i. 6 Marine Bank r. Chandler . . i. 5.39 V. Wright ii. 456 Marine City, The ... i. 713 ilarine National Bank v. National City Bank i. 551 Marion v. Faxon ii. 781 V. Stone i. 290 Marion County r. Shipley . . i. 247 Markey v. Langley .... ii. 30 Markham v. Jaudon . . . i. 109 Marking v. Needy i. 56 Markoe v. Andras ii. 5 Marks v. Cass County Mill, &c. Co. i. 605 V. State ii. 747 Markwald v. Creditors . . ii. 487 Marmon v. Marmon ... i. 232 Marquette v. Chicago, &c. R. R. Co i. 739 Marquette, &c. R. R. Co. -o. Kirk- wood . . i. 795 Marsh v. Hyde .... ii. 434, 448 V. Rouse ii. 433 Marshall v. Duke ii. 501 V. Hann i. 248 Marston r. Baldwin ... ii. 630 Martha, The i. 707 Martin v. Adams ii. 632 INDEX OF AMEKICAN CASES. CXXUl Martin v. Black 1. 43 V. Clark i. yai V. Cole i. 321, 322 V. Fishing Ins. Co. . . . ii. 123 V. Mathiot ii. 528 V. O'Bannon ii. 5 0. Union Pacific R. R. Co. i. 323 Marvin v. Treat . . ... i. 56 V. Universal Life Ins. Co. ii. 203 Marye v. Strouse . . i. 109 ; ii. 778 Maryland Fertilizing, &c. Co. o. Lorentz i. 2!10 Maslin v. Baltimore, &c. R. R. Co. i. 768 Mason V. Bickle ... ii. 530, 531 V. Campbell ii. 847 V. Chappell ii. 510 V. Clifflord i. 341 V. Haile i. 6 V. Hall ii. 843 u. Metealf ii. 215 u. Thompson ii. 447 V. Wilson i. 266 Massachusetts General Hospital v. Fairbanks i. 232 Massey v. Belisle i. 285 Massie v. Crawford . . . . ii. 508 Massman ;;. Holscher . . . . i. 51 Massot V. Moses i. 339 Masterson v. Cheek i. 49 Mathe' v. N. 0. Sugar Shed Co. i. 605 Mather v. American Exp. Co. i. 739, 767 Mathers v. Carter i. 265 Matteson v. Holt ii. 829 V. Noyes i. 101 Matthai v. Heather . . . . ii. 730 Mattocks V. Young i. 69 Mauck V. Melton i. 253 Mauney v. Ingram .... i. 607 Maury v. Coyle i. 539 Maus V. McKellip ii. 6 Maxwell v. Brown ... ii. 434, 440 V. Pittenger i. 229 Mayer v. Clark ii. 26 V. United States .... i. 119 Maynard v. Anderson . . . ii. 528 D. Buck i. 607 V. Maynard .... i. 49, 50 V. Newman i. 540 Mayo V. Gardner i. 29 Mayor v. Lord i. 241 Mays V. Williams ii. 732 Meacham t". M'Kie i. 31 Mead v. Billings 1. 71 V. Engs ii. 234 Meade v. Smith ii. 472 Meador v. Dollar Sav. Bank . i. 322 V. Meador ii. 38 Meadows v. Meadows . . . ii. 429 Meagher v. Thompson . . . . i. 72 Means v. Hendershott . . . . i. 56 V. Swormstedt i. 69 Mears v. Waples ii. 530 Mechanics' Bank u. Valley Pack- ing Co ii. 218, 251 Mechanics', &c. Bank v. Wixon i. 28 Mecke v. Life Ins. Co. . . . ii. 829 Medlin v. Brooks ii. 576 Medway Cotton Manufactory v. Adams ii. 781 Meeker v. Vanderveer . . i. 206 Meguire v. Corwine . . . . ii. 719 Melchert v. American Union Tel. Co ii. 744 Meldrum v. Clarke .... i. 323 Mellen v. Moore . .... i. 09 Mellick V. Dayton ii. 7 Melvin v. Proprietors of Locks . i. 71 Memphis v. Brown .... i. 241 V. United States .... i. 241 Memphis, &c. R. R. Co. u. Neigh- bors ii. 829 Mercer v. Mercer ii. 610 Merchant v. Chapman . . ii. 475 Merchants' Bank v. Hayes . i. 68, 69 Merchants' Despatch, &c. Co. v. Cornforth i. 767 Merchants' Despatch Transp. Co. V. Joesting .... . i. 767 V. Leysor .... . i. 767 Merchants' Exchange u. United States i. 119 Merchants' Loan, &c. Co. v. Bank of the Metropolis . . . i. 550 Merchants' Nat. Bank v. National Eagle Bank i. 547 Merchants', &c. Transp. Co. v. Story . 1. 604 Merriam r. Field ii. 508 V. Pine City Lumber Co. i. 59, 287 Merrick v. Trustees, &c. . . ii. 716 Merrill, Re i. 133 V. Dawson ii. 24 V. Gore i. 288 V. Hunnewell ii. 454 V. Kenyon ii. 433 V. Melchior i. 289 u. Nelson ii. 5 V. Pease i. 254 V. Robinson ii. 754 Merriman v. Moore . . . . ii. 843 V. Norman i. 291 Merrin v. Lewis ii. 30 Merritt v. Hemming . . . i. 28 «. Old Colony, &c. Ry. Co. i. 606 Mersey, The i. 330 Mershon v. Hobensack . . . i. 133 V. Mersiion ii. 6 Merrin v. Murphy ii. 7 Messenger v. Pratt . . . . ii, 513 Messer v. Woodman . . ii. 447, 454 Metealf V. Taylor . . . . i. 248, 288 Methodist Orphans' Home Asso- ciation V. Sharp i. 12 CXXIV INDEX OF AMERICAN CASES. Methudy v. Ross i. 247 Meyer v. Dubuque County . . . ii. 5 V. Graeber . . . . ii. 6 V. Lowell i. 59 V. McCabe i. 314 Meyers v. Farquliarson . . . i. 339 Miaghan v. Hartford Fire Ins. Co. ii. 188 Miami Coal Co. v. Wigton . . i. Ie8 Miantinomi, The i. 291 Michigan Central K. R. Co. u. Boyd i. 767 V. Dunham . . . . ii. 829 V. Phillips ii. 530 Micou V. Ashurst . . . ii. 6 Middlebrook v. Thompson . ii. 454 Mildren v. I'ennsylvania Steel Co. i. 247 Milford V. Wesley . . i. 463, 459 Milk V. Moore . ii. 508 Milks V. Rich . ... i. 265 Millard i: Missouri, &f. R. K. Co. i. 772 u. National Bank of the Re- public .... . i. 547 Milledgeville Manuf. Co. r. Rives Millenovich, Matter of Miller v. Aldrich i'. Alliance Ins. Co. V. Cook ii. 429 V. Drake . . i. 10, 19 ii. 607 i. 205 . ii. 6 ii. 187 0. Finley V. Fletcher V. Hatch . u. Irvine . V. Larmon . V. McDonald . V. Marston u. Miller . . . (■.' Smith . . V. Wentworth . ?;. Williamson . Millett V. Parker Milliken v. Pratt . Milliman v. New York R. R. Co. . . , Million V. Olmsorg Mills V. Gcran . V. Gould . . V. Johnston . V. Lee V. Murry V. Williams . V. Wilson i. 51 ; i. 229 ii. 80 ii. 847 . ii. 429 . ii. 610 . . ii. 508 . . i. B07 . . ii. 399 ... ii. 50 . . ii. 611 i. 205 . . ii. 80 . . i. 44, 319 Central, &c. . i. 747 ii. 722 . . ii. 607 . i. 286 . . ii. 607 . . ii. 893 .... i. 6 ... i. 312 V. Wyman i. 25, 26 Milne v. Huber . ii. 715, 732 Milton V. Haden . . . . ii. 732 Minard v. Syracuse, &c. R. R. Co. i. 768 Mine Hill, &c. K. R. Co. u. Lippin- eott i. .340 Mineral Point R. R. Co. o. Barron i. 311 Minor v. Sharon . . . . i. 360, 446 V. Staples i. 452 V. State i. 179 Misner v. Granger ii. 508 Missisquoi Bank v. Sabin . . . i. 33 Mississippi Central K. R. Co. o. Soutliern R. R. Assoc. . . . i. 59 Mississippi Mills v. Union, &c. Bank ii. 487 Missouri, &c. R. R. Co. u. Fort Scott i. 305 Mitchell V. Commonwealth . ii. 528 V. Doggett . . . . ' . ii. 732 V. McElvin . . . . i. 655 V. Moore . . . . ii. 829 V. Nelson . . i. 378 V. Smith ii. 7.32 Mizell V. Burnett i. 36 Mizner r. Kussell ii. 6 Moar V. Wright . . . . i. 25 Mobile Building, &c. Loan Assoc. V. Robertson ... . ii. 531 Mobile, &c. R. R. Co. u. Edwards ii. 611 V. Whitney i. 312 Mobray v. Leckie ii. 6 Mockbee v. Gardner ... ii. 501 Moffltt v. Roche ii. 6 Mogelin v. Westhoff . . ii. 611 Mohawk Bridge Co. c. Utica, &c. R. R. Co. . . . . i. 290 Mohr !■. Tulip i. 234 Mohr, &c. Distilling Co. v. Ohio Ins. Co. ... ii. 203 Molyneux i-. Collier . . i. 10 Montague v. Smith . . i. 64 V. Weil . . Montgomery v. The Abby Pratt r. Firemen's Ins. Co V. Lampton . . i. 25; Monton v. Noble Moore v. Adams V. Fitzwater V. Fuller . . V. House . . a. Hutchinson 0. Love . . u. Meacham V. Metropohtan Bank ". Mohney . . V. Moore . . . V. Piercy . . t. Pierson . . V. Quirk . . . V. Ragland V. Reed . . V. Remington . V. Ross . . . V. Stovall . . Moorehouse i\ Comstock Moorhouse v. Crangle Moote V. Scriven . Moran v. Elizabeth V. Prather . . . Morancy v. Dumesnil 11, 11 247 707 287 832 247 . 29 .29 ii. 6 . 64 251 262 293 528 i. 341 ii. 611 ii. 532 . i. 42 ii. 611 . ii. 7 i. 229 ii. 716 i. 341 i. 266 ii. 508 i. 266 ii. 399 i. 241 i. 334 i. 289 INDEX OF AMEKICAN CASES. CXXV More V. Bonnet .... Morey v. Homan . . . Morgan v. MoKee . . . V. New Orleans, &c. R. Co, u. BoUes . . . i;. Edwards . . u. Graham . . V. Taylor . . Morrall v. Waterson Morrell v. Quarles . Morrill v. Robinson V. Tehama Consolidated Mill, &c. Co. Morris v. Harveys V. McCoy . u. Mc Morris a. Shryocli . V. Tliompson Morris Run Coal Coal Co. . . Morrison v. Baker V. Brand . . V. Dingley . V. Hogue u. Huggins . V. Mendenhall V. Orr . . V. Savage . . V. Woodley . Morriss v. Harveys Morrow v. Rees . , V. Smith . . . V. Waterous Engine Morse v. Bellows V. Chisholm V. Sherman . Mortland v. Holton Morton u. Nichols Mosby V. Hodge V. Leeds . . Moseley v. Boush . V. Shattucli V. Vanliooser Mosely v. Mastin Moses V. Mead . . V. Sun Ins. Co. Mosher v. Smith Moshier v. Norton Moss V. Averell . V. Riddle V. Wilson . Motley V. Head . V. Motley . Mott V. Riclitmyer Moulding v. Prussing Moulton V. Phillips Mount Hope Iron Co. ton .... Mouton V. Noble Mowers v. Fethers Mowry v. Todd . Co. 10, i. 290 i. 289 ii. 829 Co. i. 312 i. 630 ii. 215 ii. Oil ii. 472 i. 322 . i. 55 1.322 36 ii. 806 ii. 687 ii. 611 ii. 487 ii. 501 Barclay ii. 766 . i. 265 . ii. 5 ii. 446, 454 i. 265 ii. 251 i. 146 556, mo ii. 862 ii. 454 ii. 843 ii. 829 ii. 510 i. 25, 36 ii. 4.34 ii. 447 i. 291 . ii. 5 .ii 30 . i. 10 . i. 11 ii. 529 ii. 754 i. 330 508. 518 ii. 123 ii. 472 . ii. 9 i. 168 . i. 51 i. 291 1.234 . i. 29 i. 322 i. 247 524, 605 Buffing- ii. 472 247; ii. 715 452 25 . 1. Moxley v. Moxley i. 35 Moyer v. Mitchell i. 378 Mueller v. State ii. 754 Muhlig V. Fiske i. 322 Mulligan v. Corbins i. 6 Mumford v. Canty i. 312 17. McPherson . . . . i. 247, 285 Munger v. Albany City Nat. Bank i. 548 Munter v. Lynn ii. 8 Murch V. Wright ii. 530 Murphy v. Hendricks . . . . ii. 7 V. St. Louis i. 290 Murray v. Carothers .... i. 287 V. Clark i. 453 V. Fishback ii. 26 V. New York Life Ins. Co. ii. 204 V. Smith ii. 508 V. Stanton i. 524 Murrell v. Jones .... ii. 732, 893 Muse V. Swayne ii. 686 Muser v. Holland . . . . i. 739, 767 Musselman v. Cravens . . i. 232, 233 Musser v. Ferguson i. 25 V. Jolmson i. 69 Mutual Benefit Life Ins. Co. o. Brown i. 248 Mutual Life Ins. Co. v. Hunt . i. 233 V. Wager ii. 202 Muzzy V. Knight ii. Myer v. Car Co ii. 530, 531 V. Cole i. 206 Myers v. Cottrill i. 452 V. Harvey ii. 528 V. McGraw ii. 611 V. Smith i. 42, 43 Myton V. Thurlow ii. 829 Nash v. Fugate ii. 80 V. Lull i. 31 V. Russell i. 25 National Ba,nk v. Case ... i. 172 V. Graham i. 172, 539 V. Hall i. 43 V. Insurance Co i. 545 f. Matthews i. 173 V. Sackett . . . . . i. 146 V. Second Nat. Bank . . i. 542 V. Whitney i. 173 National Bank of Commerce v. National Mechanics' Banking Assoc i. 551 National Exchange Bank u. Mc- Loon ii. 177 National Park Bank v. Ninth Nat. Bank i. 547 National Pemberton Bank v. Por- ter i. 172 National Sav. Bank v. Ward . . i. 59 National State Bank v. Davis . . ii. 6 Nay V. Mograin i. 253 CXXVl INDEX OF AMERICAN CASES. Naylor v. Dennie ii. 487 Neade v. Sears ii. IJ'I'J Neal V. Bellamy . . . . i. 340 o. Gillaspy ii. 501 V. Neal . i. 251 Neblett v. Macfarland . . . ii. 829 Neelson v. Sanborne . . . . ii. 429 Neenau v. Donoghue . . . . ii. 792 Negley v. Devlin ii. 747 Negus V. Simpson i. 509 Nelibe r. Price i. 29.j Neil V. Case ... ii. 251 Neiswanger 7'. Squir . . i. .321, 340 Neldon v. Smith . . . ii. 458 Kelson v. Brown .... i. 605 V. Cbicago, &c. E. R. Co. ii. 400 V. Everett . . . . . ii. 7 o. Plioenix Chemical Worlds i. 006 r. Wood ii. 828 Nettleton v. Billings .... i. 288 Neufville w. Stuart i. 30 New Haven, &c. Co. v. Hayden i. 291 New Jersey v. Wilson .... i. 4 New Jersey, &c. Tel. Co. v. Fire Commissioners of Jersey City ii. 743 New Jersey Zinc Co. u. New Jer- sey Franklinite Co. . . .1. 339 New Market Savings Bank v. Gil- let i. 69 New Orleans v. Gauthreaux . i. 132 V. Wilmot i. 607 New Orleans Nat. Bank v. Ray- mond i. 172 ; ii. 7 New Orleans, cStc. R. R. Co. v. Faler i. 767 New York Central, &c. R. R. Co. c. Standard Oil Co i. 323 New York Life Ins. Co. v. Graham ii. 202 New York, &c. Tel. Co. v. Dry- burg . . i. 102 Newall V. Wright . . . . i. 286 Newberry v. Wall . . . i. 261 ; ii. 429 Newbury v. Brunswick . ii. 342 Newby v. Rodgers . . . . i. 247, 248 Newcomb r. Cabell . . .ii. 472, 605 Newhall v. Paige .... . i. 10 u. Kingsbury ii. 628 V. Vargas ii. 487 Newton v. Newton i. 208 V. Winchester i. 290 Newton Wagon Co. v. Diers . ii. 242 Nichol V. Thomas i. 234 Nicholas v. Jones i. 205 Nichols V. Allen ii. 429 V. HoUiday 1. 462 V. Levy ii. 531 V. Sober ii. 220 Nicholson v. May i. 27 Nickerson v. Bridgeport Hydraulic Co i. 60 Nickerson v. Tirrell .... i. 607 NicoU V. Burke i. 363 Nimmo v. Davis .... i. 313 Nitro-Glycerine Case . . . i. 611, 738 Nixon V. Cobleigli i. 73 V. Vanhise i. 26 Noble V. Coleman .... ii. 770 V. Kelly ii. 832 V. United States ... i. 119 Noblet c. Green . . . . i. 27, 28 Nolan V. Bank of New York , i. 550 Nolte V. Libbert . ... ii. 7 Noonan v. Bradley .... i. 290 Norrington y. Wright . . . . ii. 776 North V. Forrest . . . . i. 263 North American Oil Co. v. For- syth ... ... ii. 829 North Missouri R. R. Co. v. Ste- phens . . . . i. 110 North Yarmouth v. Skillings . i. 6 Northam v. Gordon . . i. 37 Northampton, &c. Co. v. Tuttle i. 44 Northampton Live-Stock Ins. Co. r. Tuttle i. 319 Nortliern Pacific R. R. Co. v. United States .... i. 120 Northrup c. Phillips .... i. 605 Northwestern Mut. Life Ins. Co. «. Elliott ii. 198 Northwestern University v. People i. 4 Norton, Succession of . . . ii. 25 V. Gale .... i. 252 V. Janvier i, 12 u. Kearney i. 286 I-. Preston ii. 697 <■. Shepard ii. 880 V. Woodruff . ... i. 285 Norwich, &c. Transp. Co., Ee . i. 713 Noit f. Johnson i. 11, 33 Nourse c. Pope ii. 732 V. Prime i. 109 Nowlan v, Trevor i. 446 Nowlin w. Pyne ii. 687 No.xon V. Smith ii. 242 Noyes v. Nichols i. 285 V. Philhps ii. 687 Nudd I'. Montanye i. 514 Nunnally !■. White i. 11,33 Nutting V. McCutcheon ... i. 33 0. & C. R. R. Co. V. Potter . . i. 27 Oakes v. Manufacturers' Fire, &o. Ins. Co ii. 185 Oaks V. Harrison ii. 770 Gates V. National Bank . . ii. 220 O'Bannon v. Chumasero . . i. 266 O'Boyle v. Brown i. 830 O'Brien v. Credit Valley Ry. Co. ii. 433 V. Norris ii. 487 Ocean Ins. Co. u. Fields . . i. 313 O'Conner v. Rempt .... i. 229 INDEX OF AMERICAN CASES. CXXVll Odineal v. Barry i. 10 O'Donnell v. Rosenberg . . . ii. 686 Ohio, &u. Ins. Co. v. Debolt . i. 4 Ohio, &c. Uy. Co. v. Hatton . 1. 812 V. Swarthwout .... i. 812 Ohio Wesleyau Female College v. Love 1. 1-3 O' Kelly V. Williams .... i. 291 O'Laughlin v. Union Central Life Ins. Co ii. 198 Old Dominion Steamship Co. v. Burekhardt ii. 529 Oliver v. Moore ii. 456 Oneida Manu£. Co. v. Lawrence ii. 508, 513 O'Neil V. Mcllraoyle . . . . ii. 454 O'Neill f. Crain i. 261 Ontario Bank v. Hennessey . i. 133 V. Liglitbody ii. 811 Oppenheim t'. Leo Wool£ . . ii. 123 V. Wolf i. 330 Orcutt V. Nelson ii. 475 Ordinary v. Thatcher . . . i. 51, 52 Ordway v. Central Nat. Bank . i. 173 Oregon, &c. Trust Co. v. Rath- bun i. 312 Oriental Bank v. Freeze . . i. 4 Ormsby v. Mackie ii. 447 Ortman v. Green ii. 447 V. Weaver i. 37 Oscanyan v. Arms Co. . . . ii. 719 Osborn v. Farwell i. 288 V. Segras ii. 6 Osborne v. Humphrey . i. 4 Ott V. Garland i. 33 Outwater f. Dodge . . . ii. 447 V. Nelson i. 329 Overmeyer v. Koerner . . . i. 254 Overstreet v. Philips .... i. 10 Overton v. Connel . . . ii. 847 Owen V. Boyle i. 313, 315 V. State .... . i. 0-3o Owing V. Baker i. 321 Owings V. Norwood . . ii. 26 Owsley V. Greenwood . . . ii. 611 Oxford Iron Co. v. Spradley ii. 611 Oxnard «. Blake i. 49 Pacific Bask v. De Ro . . ii. 010 Pacific Iron Works v. Newliall ii. 510 Pacific Mail Case .... i. 120 Pacific R. R. Co. v. Maguire . i. 4 Packard v. Getman .... i. 606 ii. Richardson ii. 429 V. Wood ii. 472 Packet Co. v. St. Louis . . . i. 606 Paddock y. Franklin Ins. Co. . ii. 123 V. Wing i. 554 Paige V. FuUerton Woollen Co. i. 248 Paine v. Benton ii. 7 V, Lester ii. 893 Paine v. Upton ii, 782 Palfrey v. Portland, &c. R. R. Co. i. 27, 313 Palmer v. Albee i. 322 c. Phoenix Mat. Life Ins. Co. ii. 205 V. Stephens i. 35 Palmyra v. Morton .... i. 107 Pancoast v. Gowen . . . ii. 550 Panzerbeiter v. Waydell . . . ii. 847 Parcher v. Marathon County . ii. 780 Pargoud v. Richardson . . . ii. 611 Parish v. Eager i. 4 V. United States .... i. 119 Park V. Cooke i. 286 V. Spaulding i. 178 Park Bank v. Watson . . . ii. 220 Parke v. Roser i. 547 Parker, Re ii. 800 V. Canfield i. 133 V. Carter . i. 12 V. Floyd ii. 25 V. Hendrie ii. 509 V. Hill i. 49 V. Lombard i. 605 u. Pettit ii. 447 V. Pitts ii. 754 V. Wilson ii. 429 Parkhurst v. McGraw . . . ii. 769 V. Van Courtlandt . . . i. 285 Parkinson v. Sherman . . , ii. 829 I'armenter v. Walker .... ii. 30 Parmelee r. Catherwood . . ii. 529 Parott V. Kumpf ii. 6 V. Wikoff i. 293 Parris v. Roberts ii. 529 Parsell v. Stryker i. 341 Parsonage Fund v. Ripley . . i. 12 Parsons, Ex parte i. 241 V. Jackson ii. 247 V. Rhodes ii. 30 V. Woodward . . . . ii. 893 Partee v. Silliman . . . . i. 311 Partridge v. Chapman ... ii. 5 Passumpsic Bank v. Goss . . ii 80 Patchin v. Swift i. 247 Pate V. Brown ii. 215 Patee v. Pelton ii. 501 Paterson v. Society .... i. 6 Patillo r. Smith ii. 847 Patrick v. Hallett . . . . ii. 123 Patten v. Baggs i. 604 Patterson, Be 1. 230 V. Carrell i. 319 ^. Gile ii. 611 i/. Hawkins i. 341 V. Keystone, &o. Co. . . i. 339 !'. Taylor ii. 6 Pattison v. Syracuse Nat. Bank 1. 172, 739 Patton V. Ashley i. 9 V. Hassinger i. 36 V, Irvin ii. 5 CXXVUl INDEX OF AMERICAN CASES. Pawling V. United States . . ii. 79 Paxton V. Boyce ii- 769 V. Meyer ii- 7 Payne v. Clarlc i- '^'■i^ V. Newcomb i- 660 V. Parker .... . i- 71 u. Patterson ii- 5 V, Rodden ii. 601 Payson v. Withers .... i. 311 Peabody v. Hewett i. 71 V. Speyers i. 293 Pearce v. Hall ii- 7 PearsoU y. Chapin ii. 715 Pearson v. Townsend . . i. 3 Pease v. Sabin . . . ii. 508, 510 Peck V. Hibbard i. 313 u. Miller i. 217 u. New York Central, &c. E. li- Co i. 739 V. United States . . . . ii. 798 Peokham v. Haddock . . i. 289 Peckinbaugh v. Quillin . . . ii. 50 Pecquet v. Pecquet . . . ' . i. 313 Peine v. Webber ii. 686 Pelliam v. State i. 3 Pence v. Langdon . . . ii. 828, 829 Pendarvis v. Gray ii. 829 Pendleton v. Knickerbocker Life Ins. Co ii. 205, 806 Penfold K. Universal Life Ins. Co. ii. 204 Penn v. Bornman . . V. Hamlett . . . Pennington v. Gittings Pennock v. McCormick Pennsylvania Coal Co. i Pennsylvania Co. i^. Roy Pentz V. Stanton . . People V Bond V. Cooper u. Calder V. Croton Aqueduct V. Fisher V. Gates . V. Gosper V. Hosier u. Morris V. Medical Society of Erie i. V. New York Juvenile Asylum i. G-.r, V. New York Ry. Co. . . i. 746 V. Pinckney i. 6 u. Quick i. Ill V. Shall i. 9 V. Smith i. 38 V. Weissenbach .... i. 655 People's Bank v. Gridley . . ii. 472 V. National Bank .... i. 172 People's R. R. v. Memphis R. R i. 38 Pepper v. Haight i. 286 Perkins v. Bailey ... . ii. 829 <;. Catlin ii. 219 172; Dovey Board i. 655 ; ii. . i. 285. 1. 733 ii. 80 i. 15 ii. 5 ii. 5 i. 739 i. 69 i. 5 i. 29 i. 341 i. 38 i. 107 010 288 655 i. 6 107 Perkins v. Douglas . . . . ii. 532 V. Partridge ii. 829 Perrine v. Cbeeseman . . . i. 8, 10 V. Thompson . . . ii. 247 Perry v. Faneuil Hall Ins. Co. ii. 190 V. Patterson . . . i. 51 I'. Wheeler i. 630 Perry man v. Greenville . . ii. 611 Petillon I'. Lorden . . . ii. 242 Petrie v. Pennsylvania R. R. Co. i. 812 Pettengill v. Elkins . . . . ii. 472 Pettis V. Kellogg ii. 627 V. Ray ii. 847 Pettit V. Pettit ii. 762 Pevear, Re ... . . . ii. 687 Pew V. First Nat. Bank . . i. 630 V. Laurence . . . ii. 454 Peyser v. Mayor, &c. of New York i. 370 Peytona, The i. 706 Pf eifOer v. Kingsland .... i. 12 Pfirmann ?;. Henkel .... i. 133 Phalan v. Styles . . . i. 12 Phelan v. Albany, &c. R. R. Co. ii. 792 Phelps I'. Bemis . . . . ii. 527 V. Bostwick i. 293 V. Cutler . . .11. 448 u. Whitaker ... . i. 321 Philadelphia R. R. Co. i: Larkin i. 746 Philadelphia &c. R. R. Co. i. Leh- man .... . ii. 755 Phillip r. Gallant .... i. 36 PhiUips V. Ocmulgee Mills . ii. 434, 463 0. Preston . . . . i. 33 < . Rensselaer, &c. R. R. Co. i. 811 V. Scott i. 286 Philpot r. Grunninger . . . . i. 10 Phoenix Ins. Co. c. Badger . . ii. 113 V. Church ii. 220 V. Continental Ins. Co. . ii. 789 Physick's Estate ii. 342 Pickens t\ Hathaway . . ii. 893 Pickering v. Demeritt . . i. 108 V. Fisk i. 313 Pickett V. Merchants' Bank i. Ill, 173 V. Sutter i. 228 Pierce v Bryant .... i. 133 ( . New Orleans Building Co. i. 29 V. Wilson ii. 829 Pierson v. Atlantic Nat. Bank i. 321 V. Morch i. 56 Pike V. Thomas i. 33 Pilee V. New Orleans i. 56 Pillow V. Brown i. 286 Pilmer v. Branch of State Bank i. 293 Pinkham v. Mattox . . ii. 434 Piqua Branch v. Knoop .... i. 6 Pitkin V. Noyes i. 29 Pitt V. Gentle i. 10 Pitts V. Owen ... ii. 529 Pitts, &c. Co. V. Poor . . i. 323 Pittsburg, &c. Ry. Co. i^. Hazen i. 747 INDEX OF AMERICAN CASES. CXXIX Pittsburg, &c. Ry. Co. v. HoUowell i. 747 V. Naziim i. 812 Pittsburg, &c. R. R. Co. v. Van- ilyne . . i. 747 Pittsburg L. & C. Works v. State Nat. Bank ii. 531 Pitzer V. Burns ii. 6 Place V. Minster . . . ii. 829 Planters' Bank v. Vandyck ii. 5'29 Piatt V. Lott .... i. 285, 289 Pleasants v. Pendleton . . . ii. 4.J3 Plummer v. Shirley . . . ii. 528 Pointer v. Merchants', &e. Ins. Co. ii. 123 Poland V. Brownell . . . . ii. 550 Police Jury t: Shreveport . . i. 6 Pollard, Ex parte ii. 687 u. Maddox i. 293 V. Vinton i. 692 Pollock I'. Landis i. 462 V. National Bank . . . ii. 571 Polluck V. Fisher .... ii. 454 Pomeroy v. Ainsworth . . i. 314 Pond V. Cooke ii. 893 Ponder v. Rhea ... . . i. 342 Poolx-. Bledsoe ii. 880 V. Boston i. 56 Poor V. Hudson Ins. Co. . . . ii. 188 V. Woodburn ii. 829 Pope V. Andrews . . . . ii. 769 V. Fort i. 12 V. Hooper ii. 6 Port Carbon Iron Co. v. Groves ii. 510 V. Port ii. 339 Porter v. Gorman .... ii. 550 V. Muller ii. 5, 38 V. Pettengill . . . . ii. 527, 532 V, Sandidge i. 322 Postori V. Balch ii. 829 Potter V. Mercer i. 344 V. Parsons i. 110, 111 V. Titcomb ii. 829 u. Virgil i. 19 Pottinger v. Hecksher . . ii. 487 Potts V. Aechternacht . . . i. 679 V. Whitehead . . . i. 36, 37, 42 Poughkeepsie, &c. Plank Road Co. V. Griffin i. 33 Poultney v. Fairhaven . . . ii. 342 Powell V. Brown i. 10 V. Burroughs i. 340 V. Conant ii. 5 V. Hopkins ii. 30 n. Monson, &c. Manuf . Co. . i. 71 V. Waldron ii. 550 Powers I'. Briggs i. 69 V. Provident Inst, for Savings i. 320 V. Russell i. 60 V. Sixty Tons of Marble . i. 620 Prather v. Zaulauf . . . . ii. 611 vol.. III. Pratt V. Canton Cotton Co. . i. 293 V. Farrar ii. 829 V. Hotchkiss i. 679 V. Pliilbrook ..... ii. 501 V. Taunton Copper Co. . ii. 571 Prentiss v. Achorn .... i. 229 Presbyterian Cliurch v. New York i. 7 Prescott ('. Holmes . . . ii. 501 V. Locke .... ii. 434, 447 Preston v. Hill i. 110 0. Hull ii. 80 V. Whitney ii. 528 Prestwich o. Poley . . . . i. 110 Prettyman v. Goodrich . . . . i. 49 Prevost V, Gorrell . . . . i . 340 Price V. Evans ... . . i. 293 V. Cover ... . . . ii. 6 u. Jones ... . ii. 529 «. Pittsburgh, &c. R. R. Co. i. 52 u. Wisconsin Marine, &c. Ins. Co i. 605 Priester v. Priester . ... i. 15 Prime v. Koehler ... i. 265 Prince v. Griffln ii. 399 Princeton Loan & T. Co. v. Mun- son . . .... ii. 30 Priugle V. McPherson . . i. 203 Pritchard n. Howell i. 26 Probasco v. Johnson ii. 38 Prot. Ep. Public School, Matter of i. 38 Providence Bank v. Billings . . i. 4 Prutsman u. Baker 1.52 Pryor v. Cain i. 12 Pucker v. Steelman .... i. 254 Puckett I'. Reed ... . ii. 472 Pugh V. McCormick ... ii. 610 Pullan V. Cincinnati, &c. R. R. Co. ii. 6 Pullman Palace Car Co. u. Missouri Pacific Ry. Co. . . . i. 739 V. Smith . . . . i. 453, 739 V. Taylor i. 739 V. Texas, &c. R. R. Co. i. 739 Purcell V. Goshorn i. 71 Purdee v. Treat . . . . . ii. 5 Purinton ;'. Ins. Co i. 69 Pursell V. New York ... i. 370 Pusey V. New Jersey, &c. R. R. Co. ii. 789 Putnam v. Lamphier . . . . ii. 529 V. Tillotson ii. 475 V. Wise i. 340 QuARTEKMOTJS V. Kennedy i. 247 ; ii. 8 Queen City, &c. Build. Assoc, o. Price ii. 30 Quick V. Wheeler i. 247 Quigley v. De Haas .... i. 290 V. Muse . i. 8 Quincy Bank v. Hall . . . i. 247, 287 Quintard v. Bacon ii. 440 cxxx INDEX OF AMERICAN CASES. R. G. WiNSLOw, The . . . i. 605 Kagsdale v. Gossett . . i. 322 Railroad Co. v. Brown . i. 74t) V. Durant ... . . i. 320 V. Fraloff i. 772 V. Manufacturing Co. . . i. 767 V. Nationiil Bank . . ii. 218, 220 Railway Co. v. Valleley . . . i. 740 Ramaley v. Leland . . i. 459 Raniley i'. Leland ... . i. 35 Ramsay v. McCauley ... i. 315 r. Phoenix Ins, Co. . . . ii. 188 Ramsey i:. Edgefield, &c. R.R. Co. i. 3l)4 Rand v. State Nat. Bank . . i. 524 Randall v. Snyder . . . i. 68 Randle v. Harris . . . i. 11, 31 Randolph v. Halden . i. 340 Rankin v. Badgett . . . ii. 769 V. Craft 1. 514 i\ Kinsey .... . ii. 7 Ranny v. Higby . . . ii. 475 Ransom !•. Mack . ii. 2.14 Rapelye v. Maclde . . . ii. 447 Rathbun v. Rathbun ... . i. 49 Ratliff ('. Trout ii. 429 Raubitsche v. Blank ... i. 254 Raum V. Kaltwasser . i. 59 Rawdon u. Dodge i. 254 Rawson r. Pennsylvania R. R. Co. i. 812 <•. Tuel .... . ii. 527 Ray V. Bank of Ky. . i. 539 V. Thompson . . . ii. 532 V. Tubbs . i. 509 Raymond v. Coffey i. 321 Rayner v. Preston . . . ii. 304 Raynham v. Canton i. 314 Rea V. Trotter . . i. 605 Read !!. French ... i. 28 Reading v. Grav . . . . i. 294 Reading, &c. Manuf. Co. v. Graef i. 168 Reading R. R. Co. v. Johnson . . i. 12 Real Del Monte Min. Co. v. Pond, &c. Min. Co i. 330 Ream v. Plarnish . . i. 342 Redd V. Burrus . . . ii. 456 Redfield, &c. Co. v. Dysart . ii. 769 Redgrave v. Redgrave . ii. 341 Reed v. Evans ... . ii. 429 V. Field i. 286 V. Lucas . . . . . ii. 529 u. I'eterson ii. 882 V. Shaw . . . . . ii. 828 Reader v. Machen . . . . ii. 4S6 Rees V. Baker . . . . . i. 341 V. Jackson ii. Oil Reeves v. Harris ii. 529 V. Pierson ii. 251 Reid V. Kenworthy ... i. 274 Reimers v. Ridner . . . ii. 458 Reinhold v. Albert! . i. 110 Reinicke v. Smith .... i. 229 Reinskopf v. Rogge . . . i. 228, 229 Reis V. Hellman ii. 611 Relle V. Western Union Tel. Co. i. 829 Remick v. Sandford . . . . ii. 433 Remington v. Wright . . ii. 780 Renshaw v. Lefferman . . . ii. 829 V. Richards . ... ii. 6 Resh V. First Nat. Bank . . . i. 538 Rcw 11. Barber . . . . ii. 501 Hey V. Toney i. 607 Reynian v. Mosher. . i. 252, 253 Reynolds v. Ayres . . . ii. 447 V. Baldwin i. 6 V. Boston, &o. R. R. Co. ii. 487 V. Carpenter . ii. 429 c. Morse . .... ii. 0, 7 I'. Reynolds . . . . i. 206 !'. Spencer ii. 7 Rheinstrom v. Cone . . . ii. 611 Rliind V. Hyndman . . . . ii. 880 Rhodes v. School District No. 14 i. 52 Rice r, Barrett . ... i. 133 v. Bi.xler i. 29 r. Dwight Manuf. Co. . . . i. 36 t. Forsyth .... ii. 501, 508 V. Montgomery . . . i. 330 ?', Sims ... . i. 33 Rich V. Dupree . . . ii. 762 V. New Tork Central &c. R. R. Co. . . ii. 070 Richard v. Beauchamp . . . ii. 6 V. Brehm . ii. 339 Richards r. Betzer . . . . i. 323 !'. Cunningham . . i. 252 t . Fuller . . . i. 321 u. Schlegelmich . . i. 304 c. Warring . . . i. 2S9 Richardson v. Braskett . ii. r. Brown . . . . . i. 28 r. Cambridge . . . . ii. 25 r. Draper . . . i. 312 V. Hogg .... . i. 133 u. Lester .... . i. 146 <•. McNulty . . . i. 339 ('. Rardin . , . . ii. 472 r. Robbins .... . i. 265 !■. Squires . . . ii. 434 r. Williams . . . . . i. 12 Richmond c. Roberts . ii. 328 !'. Union Steamboat Co . i. 692 !■. Woodard . ii. 781 Richmond Factory Assoc, a. Clarke i. 167 Richmond R. R. Co. v. Louis a. R.R. Co . . i. 6 Rickart r. People . . . . i. 179 Rickle V. Dow . . . . ii. 220 Ricks !'. Dillahunty . . ii. 501 Riddle V. Varnura . . . ii. 447 Rider r. Edgar . . . . ii. 7 Ridgeway v. Kennedy . ii. 529 Ridlon V. Davis .... . . ii. 847 Rielly v. Rand .... . i. 509 INDEX OF AMERICAN CASES. CXXXl Riggs V. Roberts . . Rigney v. Mitchell Riley V. Vanhouton . Rindskoffi v. Barrett . Rindskopf v. Deruyter Ringling v. Kolin . . Ripley v. New Jersey, &o. Rippey v. Friede . . Rittenhouse v. Aramerman Ritter's Appeal .... Ritterband v. Ba^gett Roach V. Menomee Robb V. Bancroft Eobblns v. Ayres u. Magee V. PhiUips . Robert's Appeal Roberts ;;. Brownrigg V. Carter V. Cocke V Pillow u. Welch Robertson v. State r. Strickland V. Wright . Robins v. Bellas Robinson's Estate Robinson v. Dauchy V. Fiske . u. Gordon V. Haas V, Howe . V. Kruse . V. Lair V. Larrabee 0. Magee V. iVIempliis, &c. R. R V. Norris V. Stow . , V. Threadgill V. Wright . Robinson Machine dler .... Robson V. Miller V. Swart . . Roby V. West . Rockwell V. Newton u. Proctor Rodee v. Wade . Rodgers v. Grotlie V. Jones V. Niles . V. Phillips V. Stophel Roe V. Conway Rogers v. Allen I'. Atkinson V, Broadnax V. Gosnell . V, Kneeland V. Stone Co. Works ii. 880 ii. 454 i. 289 i. 334 ii. 766 i. 540 1. 1. 283, 11. Co. i.812 . i. 27 . i. 69 i. 2-30 ii. 550 i. 21 286 i. 64 249 ; ii. 782 ii. 529 i. 168 i. 249 ii. 89.3 i. 311 i. 314 ii. 26 ii. 341 ii. 454 ii. 607 i. 51 1.208 314 334 448 529 i. 5, 7 i. 341 ii. 611 i. 524, 605, 620 2 3 Co. i. 713 . i. 109 i. 285, 293 i. 10 . i. 390 Chan- ii. 510 ii. 508 . i. 605 . ii. 732 i. 291 452 4-54 . i. 620 . i. 262 ii. 508, 510 ii. 440, 475 . i. 606 . i. 408 i. 291 . i. 285 . i. 287 . ii. 843 i. 286; ii. 429 i. 58 1. ii. ' Rogers v. Thomas ii. 487 V. Western Union Tel. Co. ii. 754, 829 V. Whitehouse . . . . ii. 530 !'. Worth ii. 769 Rogers Locomotive Works v. Lewis Roland v. Grundy . Rominger v. Keyes Hood V. .Tones . . Root V. Wrigiit . . Roper V. Stone Ropes V. Lane Rorabacher v. Lee . Rose V. Beatie . . V. O'Linn . . I/. Roberts . I/. Story . . . V. Vercin . . . Rosenblatt v. Townsley Rosendorf v. Hirschberg Rosenplaenter v. Roessle Rosenstock v. Ortwine . Rosenthal v. Dessau Ross V. Kennison . . V. Mather . V. Mitchell . V. Swaringer V. Welch Rotli V. Crissy . Rothrock v. Perkinson llothschild 7). Rowe Rourke v. BuUens . Roussillon ;;. Roussillon Rowe V. Collier . . V. Putnam . . V. Sharp . Rowell V. Hayden Rowley v. Bigelow Rowland v. Plummer Royalton v. Royalton pike Co. . . . Ruckman's Appeal Ruffier V. Womach Ruiz V. Norton . . Rundle ". Delaware, &c, V. Pegram Rush V. Carpenter . u. McDermott Russell V. Babcock V. Buck . . V. Freer . V. McCorniick V. Martin . , V. NicoU . . u. Russell . V. Stewart . Rutherford v. Executive tee Rutledge v. Greenwood Ryan v. School Dist. No Ryer v. Stockwell . . &c. Turn- . . 11 Canal Co. 11. i ii. 11 11. 531 528 ii. 242 i. 28, 29 i. 299 i. 10 447, 454 i. 286 ii. 513 i. 265 i. 288 528 630 754 529 i. 459 ii. 6 ii. 487 ii. 843 ii. 508 ii. 25 i.342 ii. 448 ii. 829 ii. 747 ii. 829 ii. 440 ii. 739 ii. 607 i. 547 ii. 528 1.49 ii. 487 ii. 611 1.290 i. 247 ii. 5 508 i. 6 i. 2 290 205 i. 28 i. 12 i. 80 ,304 ,330 ,278 ,322 i. 56 Commit- 13 1. oo , 630 cxxxu INDEX OF AMERICAN CASES. 11. 1, 119, Sackett ji. Johnson . . . . ii. 220 Sacra v. Semple . . . . ii. 529 Safford v. McDonougli . . . ii. 433 u. Wyckoii i. 3 V. Gittner i. 620 Steutz ii. 528 V. Wilcox . . i. 28 ; ii. 429 St. Louis V. Russell . . . i. 6 St. Martinsville v. The Mary Lewis i. 607 Salisbury v. Stainer . . . ii. .508, 513 Salmon v. Orser ii. 770 Salmon Falls Manuf. Co. c. God- 429 288 529 3.30 120 i. SR ii. 010 i!l07 i. 524 ii. 5 ii. 528 ii. .30 i. 540 i. 167 36, 287 11,27 i. 312 i. 66 i. .331 1. 342 ii. 601 527, 6.32 ii. 529 i. 330 ii. 456 i. 315 dard . . . V. Portsmouth Co. Salomon v. Hathaway ». State . . . V. United States . Salters v. Pruyn Samnions v. Halloway Samuels r. Central, &c. Exp. Co V. McDonald . . . Sanborn v. Kobinson Sanders v. Kelier Sandford v. Flint V. Hays ... V. Supervisors of N. y Sanford v. Howard !■. Huxi'ord . . Sands V. Smith . Sandusky v. Neal . . Sarahass r. Armstrong Sargent v. Courrier V. Currier . . '•. Gile V. Metcalf .... Sasscer ;•. Farmers' Bank Saunders r. Bartlett Savage v. O'Neil . . . i. Savannah Cotton Exchange i'. State i. Savannah, &c. R. R. Co. t\ Bonaud i. r. Callahan ii. Saveland u. Green . Savings Bank v. Ward Sawyer v. Fisher V. Hamatt . V. Joslin . . V. Lufkin I . Parker . V. Taggart . Saylors v. Saylors Sayre v. King . V. Peck . . V. Wheeler . Scanlan v. Cobb V. Keith . . Scammon i\ Germania Ina, Schaefcr !>. Bidwell Scheland v. Erpelding . Schenck v. Campbell . . Co, 107 751 086 101 593 1. ii. 627 249, 286 ii. 487 i. 2.34 ii. 610 ii. 744 II. i. 293 i. 249 233, 234 i. 322 ii. 193 i. 69 i. 291 i. 288, 293 Schenke v. Rowell . . . . ii. 792 Scheriner c. Neurath . i. 524 Schermerhorn v. Burgess . . ii. 610 V. Talman . . . ii. 782 V. Vanderheyden . . . 1. 248 Schlesinger !■. Stratton . . ii. 532 Schmertz v. Shreeve . . . i. 146 Schmidt v. Potter . . . . . ii. 6 Schnebly v. Ragan . ii. 408 Schnell ,: Nell .... i. 27, 31 Schoharie County Nat. Bank. r. Bevard .... ii. 242 Schonberg r. Cheney . . i . 102, 247 School Directors v. Jennings i. 630 V. Trefethren .... . . i. .36 Schooley v. Romain . ii. 6 Schoolfield v. Moon . . i . 542, 550 Schroeder v. Harvey . i. 547 Schuelenburg v. Martin . . . . ii. 6 Schultz i: Herndon ii. 610 V. Mut. Life Ins. Co. . ii. 202 Schumacher v. Ely ii. 466 Schumpert v. Dillard . ii. 6,7 Sehute v. Hamilton . . ii. 686 Schuylkill Nav. Co. v. Harris i. 9 V. Moore i. 288 Schwartz v. Baer . i. 604 Scliwcrin c. McKie . . . . i. 605 Scliwoerer v. Boylston Market As- soc . i. 304 Scobey r. Gibson . . . . i. 5 Scofield V. Tompkins . . . ii. 687 Scott, Re i. 680 c. Carruth . . . . . i. 26 V. Crews . . . i. 639 ;■. Duffy . ii. 715 !■ Kittaning Coal Co. . i. 290 i\ McWhirter . ii. 5 V. National Bank . i. 539 1'. People . . . . . i. 65 0. Porter . . . . ii. 862 V. Scott . ii. 501 V. Ware ... . . ii. 9 V- Warner . . i. 29 Scouton V. Eislord .... . . i. 25 Scranton v. Clark . . . . ii. 501 p. ]'hillips . . . . 1. 340 Scudder v. Andrews . . . ii. 715 V. Bradbury . . . . ii. 629 V. Union Nat. Bank . . . i. 311 V. Worster . . . ii. 453 Seaman v. Seaman . . . . . 1. 10 Seamans v. Northwestern Mut. Life Ins. Co, . ii. 205 Searle v. Galbraith . . . i. 233 Sears r. Smith .... . i. 252 V. Wempner .... . i. 321 Seavers v. Cleary .... . i. 339 Sebrell v. Couch .... . . ii. 6 Second Nat. Bank v. AValbridj ;e i. 605 Seconst v. Nutt . ii. 487 Secrest i-. Stivers . . . i. 341 INDEX OF AMERICAN CASES. CXXXlll Security Bank v. National Bank of the Republic i. 547, 551 Seeger v. Pettit 1. 390 Segars i: Segars i. '247 Seibert v. Bakewell .... i. 134 Seidenbender v. Cliarles . . . ii. 732 Selden v. Myers ... . i. 248 Seligman c. Charlottesville Nat. Bank ... ... i. 172 Sellect V. Tallman . . . . ii. 697 Selvage v. Hancock Mut. Life Ins. Co ... ii. 205 Sennett v. Slielian .... i. 304 Sentell u. Moore . . . . ii. 7 Senter v. Continental Bank . i. 543 Senzeneau v. Saloy ii. 6 Sessions v. Western R. R. Corp. 1, 604 Seventh Nat. Bank v. Cook i. 547, 551 Sewall V. Boston Water Power Co. ii. 571 V. Henry . . V, Russell Seward v. Mitchell Se.xton c. Graham . Seymour v. Harvey V. Marlboro V. Marvin . V. Newton . . V. O'Keefe . . Shaffer v. Jenkins . V. McKanna V. Maddox . . Shamburg i'. Ruggles Sharp i'. Barker ii V. Johnston ... . ii. 3'J9 Sharpe i,'. Rogers i. 9, 27 i. 286 ii. 234 11,33 i. 604 . i. 10 i. 21 i. 830 ii. 487 472 i. 6 843 642 ii. 843 11 II 1. ; Shattuck V. Life Ins. Co. u. Mutual Life Ins. Co, V. Smith Shaughnessy v. Lewis Sliaw V. Burney V. Nudd I). Railroad Co. V. Spencer . Shearer v. Jewett Siieary v, Adams Sheets v. Allen . . Siieffer v. National Life Ins. Co Shells V. West . ... Shelbyville c. Shelbyville . . Sheldon v. Butler i. 266 glielton V. Marsliall . . n. 715 Sliepard v. Haas i. 247 V. Rhodes . .... i. 25 V. Sliepard ii. 7 Shepardson v. Gary .... i. 605 Shepherd v. Pressey . . ii. 440, 443 Sliepler v. Scott .... ii. 782, 843 Sheppard v. Bank of Missouri ii. 607 Sherman ;;. Kane i. 300 Siierrod v. Langdon .... i. 133 Shickle v. Couteau . . i. 322 i. 44 i. 319 i. 59 i. 323 i. 880 447 737 108 341 378 340 ii. 204 ii. 607 i. 248 Sliields V. Pettee ii. 458 V. Washington, &c. Tel. Co. i. 101 Shillaber v. Robinson . ii. 30 Sliindler r. Houston . . ii. 433, 472 Shinn v. Bodine i. 290 Shippey v. Henderson . . Sliipsey v. Bowery Nat. Bank Shireman v. Jackson . , . Slioemaker v. Hinze . . . Slides V. State ... . Short V. Stevenson . . . V. Tinsley ... Sliort Staple; The . . . Shorts V. Avvalt . . Shreve v. Joyce .... Sliriver v. Sioux City, &c. R Co Shuetze r. Bailey . Shuey V. United States Shupe i\ Galbraith . . ShurtleH v. Willard Sibley r. Halden . . Sickmon v. Wood .... Sidney i\ Stevenson Sidwell V. Evans . . . Siler V. Gray . . Sillers v. Lester Silverman r. Chase . . . Silvers v. Chitwood . . . Silvis V. Ely .... Simm V. Anglo-Am. Tel. Co, Simmons v. Fuller . V. Hamilton Simon II. Haifleigli Simpson v. Bowden V. Garland . V. Hall . . v. MuGlatliery ■ . Neill . i. 25 i. 543 ii. 528 i. 524 i. 292 ii. 829 ii. 770 ii. 769 ii. 893 i. 208 R. i. 767 . i. 69 . i. 56 . i. 35 ii. 473 i. 286 . ii. 6 Sims V. Gaines V. Howell V. James . . V. Lyies . . V. Stilwell V. Wilson Simson V. Brown V. Thornton Sinclair v. Jackson Singer v. Townsend Singer Manuf. Co. i Siter V. Sheets . . Skelley v. Kahn Skilling V. Bollman .... i. 692 Slack V. Moss . i. 27 Slater v. Bresse . . . . ii. 7 Slim «. State i. 179 Sloan Sawmill, &c. Co. v. Gutt- shall i. 261 ; ii. 448 Slocomb V. Lurty . . i. 35 Slocum V. Swift . . . . i. .322 Small V. Robinson . . . . i. 524, 620 Smalley v. Corliss . . . . i. 341 11. K» i. 27, 28 ii. 800 . ii. 7 ii. 843 i. 341 . i. 27 ii. 571 . ii. 7 ii. 847 . ii. 6 ii. 575 . i. 69 i. 265 . i. 52 i. 607 . ii. 6 ii. 508 ii. 529 ii. 220 i. 205 ii. 528 . i. 59 . i. 49 i. 554 i. 462 Graham ii. 529 . . ii. 732 . . i. 554 CXXXIV INDI :x OF AM Smalley v. Greene . . . i. 271 Smart v. Batclielder . . ii. 447, iii'j Smead v. Williamson . . . ii. 716 Smedes v. Bank of Utica . ii. 284 Smith V. Alexander . . i. 69 u. Allen ... ii. 215 1. AUis ... ii. 780 t/. Arnold . . . . ii. 429 V. Barclay .... . ii. 550 ,. Bell . i. 287 11. Brittenliam . . . ii. 776, 829 u. Clark . . ii. 531 V. Coe ... ii. 6bi0 V. Conlin . . i. 271 V. Davenport . . i, 288 V. Deniiie . ii. 530 V. Easton .... i. 101, 274 u. Elliott .... i. 291, 2'J2 f. Emery .... i. 64. 102 V. Eirst Nat. Bank . i. 540 1-. Frost . i. 605 V. Gayle . ... . ii. 832 u. Handy . . . . i.71 1. Keyes i. 402 ( . Molierly ii. 80 V. Morse .... i. 33, 36, 68 r. Mudgett .... . i. 12 V. Mutual Life Ins. Co. . ii. 198 I.Myers . . . ii. 30 V. New York . . 1.38 u. New York Central R. R. Co . i. 330 V. Odom . i. 322 V. Packard . 1.7 V. I'endergast . i. 408 V. Pettee . ii. 458 V. Poillon . . ii. 2.34 u. Reed . 1. 453 V. Rice . . i. 341 I/. Richards . . 11.828 u. Smith . . 1.29; ii. 25 V. South Royalton Ban k . i. 52 ;;. Tallapoosa County . i. 241 V. Turpin 1.286 V. Virgin i. 157 V. Watson . . . i. 19 V. Weaver . . i 35, 37, 247 V. Webster . . . 1. 254 V. Whitaker i. 314 V. Wilmington Coal Mln., &c. Co i. 203 V. Wright . . .1. 329 Smith Paper Co. v. Servln . . ii. 75 Smithers v. Heather .... 11. 30 Smyth V. Knickerbocker Life Ins. Co. .... Ii. 9 V. Ward . . . . Ii. 463 Snell V. Brown ... .11. 792 V. Ives . . . ' . 1. 69 ; 11. 843 Snow V. Warner 11. 440 Snowden n. Pitcher . . . Ii. 5 Sobey v. Thomas 1. 339 1. 4 806 1. 806 1.802 1. 802 263 ii. 454 51 Society V, Perry i. 12 Soles V. Hickman 11. 429 V. Sheppard 11. 6, 8 Solinger i\ Earle 11. 864 Solomon v. Dreschler . . . ii. 732 Soper V. Stevens 11. 829 Soule V. San Erancisco Co. . 1. 607 Southard i'. Central R. R. Co. Soutlibridge Sav. Bank v. Stevens Tool Co. . . ... ii. Southern Exp. Co. (,■. Louisville R. R. Co 1. II. Nashville, &c. Ry. Co. . 1. u. Memphis, &c. R. R. Co. ' V. St. Louis, &c. Ry. Co. . Southern Life Ins. Co. v. Cole i. Southwell V. Bcezley . . 1. 200 ; Southwestern Freiglit Co. v. Stan- ard . ... 11. 447 Spalding i'. Preston ... 11. 732 Spanglcr r. Springer . . .1. 286 Spann v. Crummerford . . . i. 314 Sjiarliawk c. Union Passenger By. Co ii. Speake v. United States Spear v. Alexander . . . Spears v. Snell . . Speckels v. Sax . . Spencer v. Hale V. MlUisack ... Spinetti v. Atlas Steamship Co. Sporrer v. Eifler Sprague v. King . . Sprecker v. Wakely . . Springfield v. Green .... 1. 542 Springstreen v. Samson . . i. 288 Spurr 1-. Albert M. Co. . . . ii. 508 Squire v. Western Union Tel. Co. 1. 101 Staak V. Sigelkow . 1. 73 Stabler r. Cowman .... 1. 8 Stacey v. Randall . Stack r. Beach . . . Stadteld i'. Huntsman Stafford v. Bacon . Stafford Nat. Bank i Stamper v. Temple Stanchfield ik Palmer Standcliff v. Morton Stanley v. Nelson . Stanton v. Eager . V. Miller . . . Stapenhorst v. American Manuf. Co i. 446 V. Wolff . . ... 1. 293 Staples V. Wheeler i. 248 ; Ii. 781 Starr v. Hamilton 1. 2, 7 V. Peck ii. 340 State V. Allls 1. 291 V. Baetz 1. 542 V. Baltimore, &c. E. R. Co. 1. 6 ; ii. 754, 755 0. Bryant 11. 747 54 ii. 854 11. 610 1. 655 1. 35 ii. 440 1.293 1.768 11. 611 11. 447 1. 4 1. 321, Palmer 286 322 528 . 26 167 1. 56 1. 132 ii. 8 . 11. 732 Ii. 475, 487 1.52 INDEX OF AMERICAN CASES. CXXXV State V. Campbell i. 812 V. Chrisman . . . i. 61 ; ii. 80 V. Clark ii. 747 V. Copeland i. 341 i;. De Lesdernier ... i. 6 V, Dean i. 565 u. Hile ii. 611 0. Hinchman i. 31o V. Hindman ii. 747 V. Hodgskins .... ii. 339 V. Hooper i. 655 V. Jewell i. 341 V. Jones . 1. 248 V. Kennedy i. 7 V. Lawson . . . . . i. 314 V. Lewis ii. 80 V. Lovell ii. 747 V. Miller ii. .341 V. Owens i. 655 V. Pepper .... . ii. 80 V. Pilsbury i. 291 V. Potter ii. 80 u. Prime . . . . . . ii. 501 u. Eeiss ii. 715 t/. Samuel ii. 339 V. Sandusky ii. 80 V. Shinn i. 265 V. Shelby County ... i. 38 V. Shorts ii. 747 u. Smith ii. 744 V. Stevenson .... i. 605 V. Story ii. 847 V. Union Merchants' Ex- change . . . i. 107 V. Williams i. 107 V. Worthington . . . . ii. 339 V. Yoke ii. 747 State Bank v. Evans . i. 51, 62; ii. 80 u. Knoop 1. 4 V. McCoy i. 229 State R. R. Tax Cases . . . ii. 631 State Sav. Bank v. Shaffer . . ii. 251 State Treasurer v. Cross . . i. 12 Steadman v. Guthrie .... i. 28 Steamboat Co. v. Bason . . . i. 707 Stearns v. Haven . . i. 133, 248, 323 V. Porter ii. 6 Stebbins v. Crawford County . i. 26 Steckel v. First Nat. Bank . . i. 538 Steel V. Fife i. 274 O.Miller i. 36 Steele v. Adams ii. 26 V. Branch ... i. 285 ; ii. 399 Steenspring v. Bennett . . . i. 289 Steeples v. Newton . . . i. 291 Steininger v. Hoch . . . i. 248 Stephen v. State . . . . i. 330 Stephens v. Brooks .... i. 56 V. Ells ii. 501 V. Howe ii. 789 V. Tucker ii. 454 V. Winn ii. 429 Stephenson v. New York, &c. R. R. Co i. 155 V. N. Y. & Harlem R. R. Co. i. 20 Stevedores' Assoc, v. Walsli . i. 107 Stevens v. Haskell i. 322 V. Owen i. 71 V. Reeves i. 249 V. Watson ii. 7 V. Wood ii. 754 Stevenson v. Rice ii. 531 Steward v. Thomas . . . . ii. 770 Stewards of Meth. Epis. Church v. Town i. 322 Stewart v. Clark ii. 6 !,■. Davis i. 509 V. Hopkins ii. 611 u. Lang i. 288 V. McGuin i. 28 1'. Munford i. .340 V. Preston i. 28S V. Smith i. 321 V. State i. 31 Stickler v. Guldin ii. 829 Stiles V. Brown i. 52 Still V. Huidekopers i. 36 Stillman v. Hiird ii. 529 Stimpson v. Wrigley . . . . ii. 730 Stinson v. Anderson ... i. 62 Stockbridge Iron Co. u. Hudson Iron Co i. 339 Stockfleet v. Fryer . . . . ii. 509 Stockham v. Stockham . . i. 42, 287 Stockton V. Turner .... i. 289 Stockton Savings Soc. v. Hildreth i. 304 Stokes V. Howerton ii. 6 Stokoe V. Upton .... i. 390 Stolte V. Herndon ii. 610 Stone V. Browning . . ii. 429, 433 V. C. & N. W. R. Co. . . i. 812 V. Clark i. 321 V. Danbury i. 21 V. Hooker ii. 716 V. Lewman i. 29 ('. Mississippi i. 7 V. Montgomery i. 71 V. Peacock ii. 446 V. Pointer ii. 502 V. Wood i. 69 Storm V. Smith ii. 501 V. United States . . . . ii. 575 Story V. Norwich, &c. R. R. Co. ii. 769 Stout V. Commercial Union Assur- ance Co ii. 187 V. Whitney i. 288 Stovall V. Hairstone i. 29 Stover V, Metzgar i. 287 Stowers v. Blackburn . . . i. 291 Straus V. Wessel ii. 456 Strauss v. Kansas City, &c. R. R. C<5 i. 810 V. Boss ii. 446 CXXXVl INDEX OF AMERICAS CASES. Strauss r.Western Union Tel. Co. i. 829 Street v. Chapman V. Goss ii. 769 Strong f. Barnes i. 286 V. Catlin i. 287 V. Gregory .... . i. 287 r. Wace ii. 769 V. Taylor . . . . ii. 528 Strother v. Law ii. oO Stuart V. Valley R. K. Co, . i. 12 Stultz r. Locke . . . i. .378 Sturdivant v. Hull ... . i. 68, 69 Sturges V. Crowuinsliield . . i. 2, 6 Sturtevant n. Orser . . . . ii. 487 Styers v. Robbins . . . . ii. 782 SufTern v. Butler . . . i. 339 Sullivan v. Byrne ii. 792 V. Dunliam ... . . i. 252 V. Hense . . . . . i. 331 Suman r. Inman . . . i. 265 Summeril r. Elder . . . ii. 475 Suramerlin r. Livingston . . ii. 715 Summers r. Roos ... . . ii. 7 Sumner v. Bryan . . ii. 7 V. Cotrey .... ii. 529 «. Hamlet . . ii. 447 . Tibbits ii. 454 V. Wheeler i. 49 Topping V. Swords i. 38 Toris V. Long ii. 508 Torrey v. Burnett i. 390 Totten V. Bucy i. 248 Tournade v. Hagedoru . . . i. 133 Tower v. Tudhope . . . . ii. 440 Towne v. Rice i. 69 Townley v. Sumrall .... i. 10 Townsend v. Griffin .... i. 2, 7 V. Hargraves ii. 447 V. Hawkins i. 52 V. Isenberger .... i. 342 V. Peaslee i. 339 Tracey v. Talmadge . . . . ii. 732 Tracy v. Chicago i. 288 V. Wood i. 554 Trafton i'. Rogers i. 25 Train v. Gold i. 10 Trambly v. Ricard .... i. 248 Traylor v. Cabanne .... i. 361 Tread way v. Smith .... i. 253 Treadwell v. Davis . . . . ii. 762 Treat v. Union Ins. Co. . . . ii. 123 Trenton Locomotive, &c. Manuf. Co. V. United States . . . i. 119 Trevor v. Wood . . i. 42, 102, 287 Trimble v. Strother . . ii. 843, 893 Troewert v. Decker . . . ii. 754 Trott V. Irish ii. 25 Troup V. Troup i. 254 Trout V. McDonald .... i. 340 Trowbridge v. Scliriev'er . . i. 524 Trower v. Elder ii. 687 Troy Academy v. Nelson i. 12, 31 ; ii. 733 Truman v. Hardin . . . . ii. 5-30 Trust Co. i;. National Bank . ii. 218 Trustees v. Aberdeen . . . . i. 6 V. Stetson i. 12 ti. Tatman i. 6 Trustees of Cahokia Schools «. Rantenberg i. 69 Trustees of Wabash, &c. Canal v. Bledsoe i. 630 Tryon v. Munson ii. 7 Tucker v. Alger ii. 6 V. Hasson i. 341 V. Meeks . . . i. 285, 288, 289 V. Potter .... ii. 610 u. St. Louis, &c. Ry. Co. . i. 155 :i i. 071) ii. J2'J . i. 28 V. Sands . . V. Watkins . Watris v. First Nat. Bank Watrous v. McKie . Watson V. Brightwell V. Brooks V. McLaren . . V. Randall . . . Watson Coal, &c. Co. v. Casteel i. CAO ; ii. 829 Watt V. Rice i. 10, 11 Watts r. French . . . ii. 847 1-. Slieppard ... i. 285 Waul r. Kirkman ... ii. 42'.l Wayne v. Tlie General Fike . i. 1334 Weatherford i-. Weatlierford . ii. 342 Weaver v. Barden . ... ii. 571 V. McElhenon . . . i. 330 V. Maillot V. Wilson . . . Welib !'. Baird . . V. Cliambers . , V. Haeffer .... V. Hoselton ... . . Weber v. Clark . .... Webster v. Rees .... Weed Sewing Macliine Co. Jeudevine . ... . ii. ii. 80 ii. 007 ii. ao . ii. 5 i. 291 i. 291 52 Weeks r. New York, &c. R. R. Co. i. 772 r. Robie . ii. 829 Weiden v. Woodruff . . i. 35, 247 Weiger v. Gould . . ii. 508 Weinstock v. Bellwood . . . i. 542 Weisiger v. Chisholm . . . ii. 769 Welch V. Pullman Palace Car Co. i. 739 ii. 429 ii. 755 , . i. 49 ii. 847 , i. 321 . i. 341 102, 247, 287 u. Scott County i. 21 V. Smith ii. 790 Welsh V. Bell ... . ii. 528 Wentworth v. McDuffie . . i. 512 V. Portsmouth, &c. R. R. . i. 340 V. Realm i. 707 Werbiskie v. McManus . . ii. 610 Wertheimer i'. Pennsylvania R. R. Co . i. 747, 767 Wesner v. Stein ii. 880 West V. Cavins ii. 251 Wei din v. Porter Wcldon V. Colquitt . . Wellborn v. Weaver . Wellington r Kelly . Wellons V. Jordon . Wells V. IloUenbeck . . V. Milwaukee, &c. R.Co. West V. Cowins i. 15 V. Waddill ii. 828 West Boston Sav. Bank v. Thomp- son . ii. 220 West River Bridge Co. v. Dix . i. 6 Westchester Fire Ins. Co. v. Earle i. 247 Westcott V. Thompson . i. 285, 293 Westerfield, Ex parte . . . ii. 764 Western Assurance Co. v. Mason ii. 188 Western Cement ( 'o ik Jones i. 234 Western Transp. Co. v. Barber i. 606 V. Kilderhouse . . . i. 310 Western Un. Tel. Co. r. Amer. Un. Tel. Co. . i. 806; h. 719,743 v. Burlington, &c. Ry. Co. i. 806 V. Fontaine i. 101 V. Kansas Pacific Ry. Co. i. 806 r. Meyer .... . i 101 Westfield r. Ludlow . . . . ii. 234 Wcstlake r. De Graw . . . i. 446 Wetmore ?■. Newberger . i. 254 Wheat V. Cross ... . i. 42, 43 V. Watson i. 341 Wheeler i\ Connecticut Mut. Life Ins. Co ii. 204 V. Insurance Co. . . . ii. 185 r. Russell ... . . ii. 732 Wheelwright r. Wheelwright . . i. 52 Whelan r. Edwards i. 12 I. Whelan ... . i. 15 Whigham v. Pickett . . . . ii. 610 Whilden v. Merchants', &c. Bank i. 101 Whipple a. Whitman . . i. 110 Whitaker v. Eastwick . . . ii. 501 Whitcomb r. Denio . . . . ii. 829 V. Whitney ii. 447 White V. Albany Ry. . . . i. 378 I . Arleth . . . . ii. 080 «. Bailey . i. 51 V. Bascom , . . i. 554 V. Baxter i. 10 V. Booker i. 287 1.. Brownell i. 107 V. Butt ii. 7 I. Corlies i. 35 f. Cox i. 220, 230 !•. Demilt ... i. 11, 33 V. Drew . i. 261 r. Gray ii. 847 o. Hunter ii. 715 ... Miller ii. 510 !'. National Bank . . . ii. 218 V. Smith i. 288 V. Trotter ii. 769 V. Van Horn i. 287 V. Walker ii. 829 V. White i. 7 Whitefield «. M'Leod i. 31 Whitehall v. Wilson i. 8 Whitehead v. Helen .... ii. .30 !•. Potter i. 11, 33 Whitehill v. Wilson . . . . ii. 832 INDEX OF AMERICAN CASES. cxli Whitehurst v. Boyd . . . i. 285, 286 Whitemore «. Hai-roldson . . i. 4&2 Whites V. Polk i. 290 Whiteside v. United States . i. 119 Whiting V. Sullivan . . . ii. 575 Whitlock V. Heard . . i. 607 Whitmore v. Nickerson . ii. 219, 220 V. Reynolds . . ii. 8 V. South Boston Iron Co. ii. 508 Whitney u. Black River Ins. C 3. ii. 188 V. Eaton .... ii. 529 V. First Nat. Bank . i. 639 V. French ii. 26 V. Ileywood . . . ii. 501 V. McConnell .... ii. 528 V. Ocean Ins. Co. . . ii. 123 11. Phoenix .... i. 208 Whitwell r. Johnson . . . ii. 234 Widdifleld v. Widdifleld . i. 133 Wieland v. White . . i. 110 Wiggins V. Burshliam . . i. 330 V Keiyer . i. 11 V. Lusk . . ... 1.49 Wiggins Ferry Co. v. Chicago &c. R. R. Co ii. 739 V. Ohio, &c. Ry. Co. . i. 289 Wigglesworth v. Steers . . i. 229 Wight V. Shelby R. R. Co. . i. 51 Wightman v. Kellogg . . . i. 33 Wilber v. Sisson . . . i. 341 Wilbur V. Flood . . ii. 829 Wilcox V. Allen ii. 6 V. Draper . . ii. 79 V. Hall . . ii. 508 V. Palmeter . i. 509 I'. Wilcox . . . i. 249 WUcox Silver Plate Co. v. G reen i.261 Wilcoxen v. Bowles . . i. 293, 341 Wilcus V. Kling ii. 686 Wilczinski v. Evernian . . . ii. 7 Wild Cat Branch v. Ball ii. 80 Wilde V. Weakley . . . i. 233 Wilder v. De Cou . i. 321 Wildey v. School District No. 1 ii. 792 Wilds V. Van Voorhis i. 71 Wiley V. Bradley .... i. 2.53 V. First Nat. Bank . i. 539 Wilkes V. Ferris .... ii. 440 Wilkie V. Bolster . i. 738 V. Collins .... ii. 342 Wilkins v. Earle . . . i. 459 V. Sorrello . ii. 6 Wilkins School Dist. v. Millig an i. 254 Wilkinson v. Gill .... ii. 747 V. Holiday . . . ii. 447 Willcox V. Jackson . . . ii. 829 Williams v. Bemis . . . i. 341 V. Carr . . . . i. 311 . i. 341 V. Grant . .... i. 707 V. Hutchinson . . i. 202 Williams v. Ketchum . . . . ii. 829 u. Mackubin ii. 7 V. Meeher ii. 7 V. Merle ii. 543 V. Pendleton ii. 251 V. Potter .... ii. 218, 529 V. Powell ii. 829 V. Robinson . i. 261, 274, 320 V. Rogers ... . . i. 265 „. Spafford .... ii. 512, 513 i\ Summers .... i. 340 r. United States i. 56 V, Vance . ii. 686 V. Wood i. 322 Williams College v. Danforth . . i. 12 Williamson v. C. R. I. & P. Ry . Co. ii. 719 u. McClure i. 288 t: McHatton i. 293 u. Mason i. 172 i,-. Massey ii. 247 V. New Jersey Southern R. R. Co ii. 7, 829 V. Sammons . . . . ii. 501 Willing !'. Peters i. 25 Willis V. Jelineck ii. 781 Willner i\ Morrell i. 605 Willoughby v. Moulton . . . ii. 829 Wills V. Ross ii. 79, 81 Willse i: Whitaker . . . i. 322 Wilmerding v. Mitchell . . ii. 5 Wilms V. Jess i. 340 Wilson V. Bigger . . . i. 229, 230 u. Conlin ii. 744 V. Edmonds .... . i. 21 V. Gould ii. 792 V. Jenkins i. 6 V. Haecker i. 320 V. Hampdeu Fire Ins. Co. . ii. 194 V. Hentges ii. 251 V. McClure i. 66 V. McKenna . . . . ii. 610 V. Martin i. 620 v. Northern Pacific B. R. Co. i. 810 <;. O'Day . ... i. 605 V. Paulsen ii. 472 V. Queen Ins. Co. . . ii. 195 V. Randall i. 286 V. Troup . .... i. 293 '. United States .... i. 119 V. Walker . . . . i. 342 Winberry v. Kaonce .... i. 253 Windham y. Doles ii. 843 W infield v. Dodge ii. 764 Wing V. Chase i. 9 V. Clark ii. 475 Winter v. Coit ii. 456 V. Jones . . i. 4 Wirebacli v. First Nat. Bank of Easton i. 232 Wisdom V. Memphis .... i. 241 Wiser v. Allen i. 253 cxlii INDEX OF AMERICAN CASES. Witherby ;;. Sleeper . . . ii. 532 Witty V. Matthews . . . i. 446 Wolcott V. Mount . . ii. 510 Wolf V. Dietzsch . . . . ii. 532 . . . i. 252 V. New Orleans ... i. 5 Womack v. Womack . . . . i. 25 Wood, Re ... . . . . i. 110 V. Jackson . . . . _ i. l.^i o. New York . . . ii. 893 V. Seitzinger . . . ii. 220 V. Yeatman . . . . ii. 487 Wood Hydraulic, &c. Min. Co. v. King i. 168 Wood Mowing, &c. Co. v. Caldwell ii. 733 Woodburn v. Kenshaw . . . . i. 25 Woodbury v, Dorman . . . . ii. 7 Wooden v. Shotwell . . . . ii. 747 Woodfolk V. Blount , . . . i. 31 Woodhall V. Greater . i. 247 Woodrow V. O'Connor . . . i. 313 Woodruff V. Commercial, &c. Ins. Co i 289 t'. Hinman ii. 762 V. Imperial Kire Ins. Co. ii. 188 u. King i. 146 V. McDonald i. 31 V. Morristown ... . ii. 697 V. State i 4 Woods V. Burroughs . . ii. 529 V. McGee . . . ii. 447, 454 V. People's Nat. Bank . ii. 7 V. Ridley i. 203 Woodson V. Gordon . . . i. 229 Woodward v. Miles . . . . ii. 843 Wooldridge v. Gates i. 10 Woolley V. Constant . . . . ii. 854 Woolsey v. Bailey ii. 475 Wooster v. Sage ii. 532 Wooten V. Miller ii. 715 Worcester v. Eaton . . . . ii. 715 Worcester Nat. Bank v. Cheeney i. 173 Works V. Hershey . ii. 611 Wormer v. Waterloo Agricultural Works ii. 847 Worrall v. Munn i. 51 Worrall's Accounts . . .J. 289 Worth V. Case i. 31 V. The Lioness . . . . ii. 575 Worthington v. Curd . . . ii. 893 Worthy v. Johnson . . . . ii. 501 Wray v. Wray . . . . i. 232, 234 Wren v. Pearce ii. 429 . . . . i. 25 . . . ii. 744 i. 167, 314, 315 . . . i. 286 . . . . ii. 26 . . . i. 820 . ii. 510 . . ii. 829 . . . i. 320 . i. 4 Wright V. Clark . V, Crabbs V. Delafield . . V. Douglass V. Eaves . . . V. Gay . . . V. Hart . . . V. Haskell . . t. McPike V. Marsh V. Paine i. 524, 540 v. Remington ii, 780 Wyckoffu. Meyers . . . . ii. 792 Wylie V. Bryce i. 36 Wylle V. Speyer ii. 247 Wyman v. Gray ii. 429 Young v. BlaisdeU . . ii. 438 ADDISON ON CONTRACTS. Vol: I. THE LAW OF CONTRACT, ETC. BOOK I. THE FORMATION AND INTERPRETATION OF CONTRACTS IN GENERAL. CHAPTER I. THE FORMATION OF CONTRACTS. SECTION I. KINDS OP CONTRACTS (DIVISION OF CONTRACTS). Definition of a Contract.^ — A contract is defined by Pothier to be " an agreement by which two parties mutually promise 1 Terms so often usei as " agreement " and " contract," acquire different senses in different connections'; to give a single definition of either which will embrace all recognized uses is perhaps impossible. A "contract," as the word is most commonly used in modern American jurisprudence, means an exchange of prom- ises, engagements, or values in consideration of each other ; a meeting of minds in acceptance of a promise made for a consideration ; or, it is the instrument or language embodying such exchange or meeting of minds. In the best use it does not embrace obligations which society imposes from reasons of general ex- pediency, but only those which are founded on assent of parties real or supposed ; and on the other hand, it does not extend to any mere moral obligation, unrecog- nized by law, which may be deduced from a promise unsupported by a consider- ation. Thus, though the expression is to be found in the books that "a judgment is a contract," yet the better use of the word does not ordinarily include judg- ments. Again, for a time after our law discarded the view that marriage was a church sacrament, to say that it was ' ' only a civil contract " was common ; but later, this was found to involve inconvenient consequences. If it were only >■ VOL. I. 1 1 * 1 FORMATION OF CONTRACTS. [BOOK I. and eugage, or one of them only promises and engages to the other, to give some particular thing, or to do or abstain from civil contract, why might not parties dissolve it at pleasure ? Hence the sounder and better view now generally held is that ' ' contract " does not include marriage, which is a civil or social status, — an institution of society, — assumed, indeed, by contract of parties, but having obligations which are regulated by law, and which parties are powerless to release ; so that although no special formalities may be necessary to attest the agreement by which it is formed, yet when formed, it is of higher obligations than those of contract. (See Bish. JIar. & D. ed. 1864, § 3, where earlier discussions how far marriage is a contract are collated : also Starr v. Hamilton, Deady, 268, 278 ; Green o. State, 58 Ala. 190 ; Townsend v. Griffin, 4 Harring. 440 ; Maguirer. Maguire, 7 Dana, 181 ; Hugh v. Ottenheimer, 6 Oreg. 231 ; Dickerson v. Brown, 49 Miss, o'll ; Rundle v. Pegram, ib. 751 ; Dyer v. Brannock, 2 Mo. App. 432 ; revM, 66 Mo. 391 ; Hynes v. ilcDerniott, 82 N. Y. 41 ; and see infra. Yet many modern cases use the expression that marriage is a contract. ) Again, obligations in which there is no apparent mutuality, such as a bond, are excluded in many instances where the word " contract " is used; mutu- ality is often said to be of the essence of a contract. The shade of difference in meaning between "agree " or " agreement " on the one hand, and "to contract" or "a contract" on the other, as they are oftenest used, is, that in the iii-st-mentioned words the implication of actual assent is stronger ; that of a consideration is weaker. Those who would say that a judg- ment is a contract would hesitate to pronounce it an agreement ; they would recognize that the latter word imports more of consent in fact than a debtor gives to a decision against him. Again, to say that a legislator contracted to vote for a bill would clearly impute bribery ; it wonld imply that he promised his vote in exchange for some value given or promised. To say that he agreed to vote for it would not negative this, but would not imply it ; the language would be satisfied by showing that he and his fellow-members had conferred about the bill, and had exchanged assurances that each would vote for it, but in the honest exercise of judgment. And, generally, "agreement" is the weaker, more ver- nacular word, "contract" the more technical and forcible. "Agreement" is more apt to be used of engagements formed by actual negotiation, but not em- bodied in the most solemn formalities of writing, seal, &c. ; " contract," where the intention is to embrace the whole range of enforceable obligations created by mutual consent. "Bargain" seems like "contract" in importing consider- ation and full legal obligation ; like " agreement" in implying actual negotiation and assent rather than delinite legal formalities. A definition of contract quite widely followed in this country is that which Elackstone quotes from some previous author (2 131. Com. 442); "An agree- ment upon sufficient consideration, to do or not to do a particular thing." Kent accepts this, limiting it to executory contracts. 2 Kent Com. 449. It is found, sometimes with slight modifications, in several of the decisions. Charles Eiver Bridge V. Warren Bridge, 11 Pet. 420, 572 ; Sturges v. Crowninshield, 4 "Wheat. 122 ; Eobinson v. Magee, 9 Cal. 81. Parsons adopts it in substance, except that he omits the element "upon suflicient consideration," saying: "We have not included the consideration in the definition of the contract, because we do not regard it as, of itself, an essential part thereof" (1 Pars. Contr. 7), and a few au- thorities seem to take the same view ; but generally the consideration is treated as a necessaiy element. A great number of special definitions are to be found in American decisions CHAP. I.] THEIR NATURE AKD CONSTITUENT PARTS. * 1 doing some particular act." Every contract includes a concur- rence of intention between two parties, one of whom promises and text-books, many of wliich vary only trivially. The following selections pre- sent tlie leatliijg, distinctive ideas : — A deliberate engagement Ix'tween competent parties, upon a legal consideration, to do, or to abstain from doing, some act. Story Contr. § 1. A mutual promise, upon lawful consideration or cause, which binds the parties to performance. Webster. A voluntary and lawful agreement, by competent parties, for a good consid- eration, to do or not to do a specified thing. Robinson v. Magee, 9 Cal. 81. A contract (contrciho) is a drawing together of minds, until they meet. This agreenjent to do or not to do a particular thing is the contract. McNulty v. Pren- tice, 25 Barb. 204. "Contract" ordinarily applies to agreements where both pai'ties become obli- gated ; and not to notes and bills, where one party only is bound. Safford v. Wyckofl; 4 Hill, 442, 456. It does not, like "deed," "bond,"&c., necessarily import that there was a written instrument. Pearson v. Townsend, 2 Hill, 550. It implies a deliberate engagement between competent parties to do or to abstain from doing some act. In its widest sense, the term includes records and specialties ; but it is usually employed to designate only simple or parol contracts. Pelham v. State, 30 Tex. 422. "Contract" is obviously derived from contrahere, to draw together; importing the same radical idea with "agreement," but with a stronger e.xpi'ession of mutuality in the use of the particle con. Mutuality, indeed, is of its very essence ; not only mutuality of assent, but mutuality of act also, — mutuality in the things agreed to be done by the conti-act. Thus mutual engagements, and no others, seem to come properly under the denomination of contracts. Burr. L. Diet., Contract. The word "contract " is of comparatively recent use as a law term. Formerly, courts and lawyers spoke only of " obligations " (meaning thereby bonds, in which the word "oblige" is commonly used as one of the technical and formal terms), " covenants," and "agreements," — wliich last word was used as we now use the word "contract." The word " promise " is often used in instruments, and some- times in legal proceedings. "Agreement" is seldom applied to specialties; "con- tract" is generally confined to simple contracts; and "promise" refers to the engagement of a party, without reference to the reasons or considerations for it or the duties of other parties. 1 Pars. Contr. 6. The definitions given in the Indian Contract Act, 1872, are carefully drawn, as follows : Wlien one person signifies to another his willingness to do or to ab- stain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. Wlien the person to whom the proposal is made signifies his assent thereto, the proposal is said to be ac- cepted. A proposal when accepted becomes a promise. The person making the proposal is called the "promisor," the person accepting the proposal is called the "promisee." Every promise, and every set of promises forming the consid- eration for each other, is an agreement. An agreement enforceable by law is a contract. Poll. Contr. 6. Chitty says : In the language of our law the term "contract " comprises, in its full and more liberal signification, every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or 3 * 1 FORMATION OF CONTRACTS. [BOOK I. something to the other, who on his part accepts such promise ; but it does not necessarily include a mutuality or reciprocity of implieJly, to ariother, to pay a sum of money, or to do or omit to do a certain act ; but in its more familiar sense it is most frequently applied to agreements not under seal. The term " agreement," on the contraiy, is rarely used amongst us, except in relation to contracts not under seal ; and this is evidently its proper use ; for, if considered in its strict and more critical meaning, it clearly imports a reci- procity of obligation ; and in that point of view it does not include specialties, which in general require no mutuality. ] Chitty Contr. 2. An a.spect of the question, What is a contract ? peculiar to American law, arises under U. S. Const, art. 1, § 10, which declares that no State shall pass "any law impairing the obligation of contracts.'' The course of decision has been that the constitutional prohibition protects executed as well as executory con- tracts (Fletcher v. Peck, 6 Crauch, 137), and implied as well as express (Fletcher V. Peck, ib. 1.37 ; Dartmouth College v. Woodward, 4 Wheat. 657, 688 ; 1 Story, Const. § 1377), and that it embraces conveyances of land, grants, and char- ters in existence at the adoption of the Constitution, even those existing before the Kevolution. Fletcher v. Peck, 6 Cranch, 137 ; TeiTett v. Taylor, 9 Cranch, 43 ; Dartmouth College v. Woodward, 4 Wheat. 641, 651 ; ( Jreen v. Biddle, 8 Wheat. 1 ; Canal Co. v, R. R. Ce., 4 Gill & J. 1. But it i.s limited to agi-eements, dealings, or transactions which involve property or some object of value, and confer rights which may be a-werted in a court of justice. Dartmouth College v. Woodward, 4 Wheat. 629 ; Butler v. Pennsylvania, 10 How. 4o2. A compact between two States (Green «. Biddle, 8 Wheat. 1 ; Allen v. McKean, 1 Sumn. 276), or a compact of a State with Congress (Lowry v. Francis, 2 Yerg. 534), is a contract within the meaning of the prohibition ; so is a contract between a State and a corporation or individual (Providence Bank v. Billings, 4 Pet. 514 ; Hall v., Wisconsin, 103 U. S. 5 ; Woodi-uff v. State, 3 Ark, 285) ; and an ordinary statute of a State legislature, whenever it involves the constitutional elements of a contract or becomes part of one, will be deemed included. Winter v. Jones, 10 Ga. 19,0 ; United States v. Great Falls Manuf. Co., 21 Md. 119 ; Damman-c. Com- missioners of School Lands, 4 Wis. 414 ; McC'racken v. Hay ward, 2 How. 608 ; State Bank u. Knoop, 16 How. 369 ; Ohio, &e. Ins. Co. v. Debolt, ib. 416 ; Central Bridge Corp. v. Ijowell, 15 Gray, 106. Thus the clause restrains a State fi-ora passing laws that disturb rights of pioperty already vested (Benson v. Kew York, 10 Barb. 223 ; Wright v. Marsh, 2 Greene, 94 ; Davis v. O'Farrall, 4 Greene, 168 ; Oriental Bank v. Freeze, 18 Me. 109 ; Coffin v. Rich, 45 Me. 507 ; Southard v. Central R. R. Co., 26 N. J. L. 13; Brooklyn, &c. R. R. Co. v. Brooklyn, &c. R. R. Co., 32 Barb. 3.18 ; Houston v. Bogle, 10 Ired. L. 496 ; Gor- don V. Inghram, 1 Grant I 'as. 152 ; Herrick v. Eamlolpli, 1" Vt. 525) ; or restore a right by the repeal of a statute of limitations (Knox v. Cli-veland, 13 Wis. 245 ; Sprecker v. Wakely, 11 Wis. 432 ; Hill v. Kricke, ib. 442 ; Parish v. Eager, 15 Wis. 532) ; or repeal an exemption from taxes previously granted upon a consider- ation or conditions which have been performed (New Jei-sey v. AVilson, 7 Cranch, 164 ; Hardy 'c. Waltham, 7 Pick. 110 ; Atwater v. Woodbridge, 6 Conn. 223 ; Osborne v. Plumphrey, 7 Conn. 335 ; Landon v. Litchfield, 11 Conn. 251 ; Gor- don V. Appeal Tax Court, 3 How. 133 ; Pacific R. R. Co. v. Maguire, 20 Wall. 36 ; Home of the Friendless v. Rouse, 8 Wall. 430 ; Washington University v. Rouse, ib. 439 ; Northwestern University v. People, 99 U. S. 309) ; or repeal an authority previously extended by the State to a municipal corporation to contract and to lay a tax for meeting the engagement, upon faith of which the corporation has 4 CHAP. I.] THEIE NATURE AND CONSTITUENT PARTS. * 1 conti-act and liability. There must be two parties to every con- tract, a promisor or party making the promise, and a promisee obtained credit. People «. Bond, 10 Cal. 563 ; Von Hoffman ». Quincey, i Wall. 535 ; Wolf o. N"ew Orleans, 103 U. S. 358 ; United States v. Jefferson County, 7 Cent. L. J. 130 ; 6 Eepoi-ter, 48ti. A grant of land or executed gift of property by a State is within the provision (Fletcher ». Peck, 6 Cranch, 87 ; Terrett i). Tay- lor, 9 Cranch, 43 ; Commercial ». Chambers, 8 Sm. & IL 9 ; and so is an issue of transferable land-scrip under a State law. McGee v. Mathis, i Wall. 156. And in the case of a j udieial sale of lands under a law naming a time for redemp- tion, this term is a part of the contract, and cannot be changed to the prejudice of the buyer, by a subsequent State law. Eobinson v. Howe, 13 Wis. 341 ; and see Scobey o. Gibson, 17 Ind. 572 ; Iglehart v. Woldn, 20 Ind. 32 ; Bronson «. Kin- zie, 1 How. 311 ; SIcCraelcen v. Hayward, 2 How. 612 ; Gantly «. Ewing, 3 How. 716 ; Howard 4). Eugbee, 24 How. 464 ; Bunn ». Gorgas, 41 Pa. SL 441 ; Weaver e. Maillot, 15 La. Ann. 395 ; Billmeyer v. Evans, 40 Pa. St. 324. Upon principles widely familiar, a charter of incorporation granted by a State legislature and duly accepted and acted on by corporators, forms a contract which the legislature may not afterwards impair unless by virtue of a right reserved. The leading case establishing this proposition is that of Dartmouth College v. Woodward, 4 Wheat. 594, in arguing wliieh Daniel Webster (counsel for the College) gave the following graphic description of the elements of a contract under the Constitution : " There are in this case all the essential constituent parts of a contract. There is something to be contracted about ; there are parties, and there are plain terms in which the agreement is expressed. There are mutual considerations aud induce- ments. The charter recites that the founder, on his part, has agreed to establish his seminary in New Hampshire, aud to enlarge it beyond its original design, among other things for the benefit of that province ; and thereupon a charter is given to him and his associates designated by himself, promising and assuring to them, under the plighted faith of the state, the right of governing the College and administering its concerns in the manner provided in the charter. There is a com- plete and perfect grant to them of all the power of superintendence, visitation, anil government. Is not this a contract ? If lands or money had been granted for the same purposes, the grant could not have been rescinded. Is there any differ- ence between a grant of corporate franchises and a grant of tangible property ? No such difference is recognized in any decided ease, nor does one exist in the common apprehension of mankind." The court sustained this general position, aud declared the College charter a contract ; and although a plausible attempt to shake or limit the conclusion was made by the Supreme Court of Ohio, in Bank of Toledo ». Toledo, 1 Ohio St. 622, and other oases at about the same time, yet the doctrine was reasserted and even generalized and extended (the Ohio judgment being reversed) by the Supreme Court of the United States in Piqua Branch v. Knoop, 16 How. 369 ; Dodge v. Woolsey, 18 How. 331 ; and eases lb. 380, 384. Much space would be needed for expounding the decisions which have followed and applied the doctrine of the Dartmouth College case, and for tracing its appli- cation to different kinds of charters ; and to do so is the less necessary because during the half century since the principal decision, the legislatures have become accustomed to grant charters only subject to a general reserved power to alter or repeal them. There are, no doubt, a few corporations chartered before the date of the decision (1819), and some created since without reservation of such power, which are independent of legislative changes made without their assent ; but the great mass of private corporations now active are subject to a right reserved to the 5 * 1 FORMATION OF CONTRACTS. [BOOK L or party to whom the promise is made ; but there may be only one contracting party. When there is a mutual contract bind- legi.slature to make changes. Moreover, it is fully understood that the doctrine of the Dartmouth College case does not apply to the charters of public corjiora- tioiis created for the purposes of yoyeriiment. Kast Hartford v. Hartford Bridge Co., 10 How. 511, 538 ; Dartmouth College v. Woodward, 4 Wheat. 518, 694 ; Police Jury v. Shreveport, 5 La. Ann. 661 ; Bradford v. (."ary, 5 Me. 339 ; Mari- etta V. Fearing, 4 Ohio, 429; Governor v. Gridley, Walk. (Miss.) 328 ; People V. Morri-s, 13 Wend. 325. A grant of franchises of government may at any time be resumed (Trustees v. Tatnian, 13 111. 27 ; People i>. Pinckney, 32 N. Y. 377, 39S), and a power to alter and change public corporations, and to adapt them to the purposes intended, is implied in any enactment creating them. State v. Bal- timore, &c. \l. R. Co., 3 How. 534, 5,^.2 ; East Hartford u. Hartford Bridge Co., 10 How. 511, 536 ; Amey v. Allegheny City, 24 How. 364 ; Bridgeijort v. Hubhell, 5 Conn. 237 ; Bush v. Shipman, 5 111. 186 ; Gutzweller v. People, 14 111. 142 ; Mills II. Williams, 11 Ired. L. 558; North Yarmouth .-. Skillings, 45 Me. 133; Baltimore v. Ktate, 15 MA. 376 ; Bristol v. New Chester, 3 N. H. 524 ; Paterson 11. Soriety, 24 N. .T. L. 3S5 ; bat see St. Bonis v. Russell, 9 ilo. 507 ; Tru.steesv. Aberdeen, 13 Smeed & M. 645 ; People v. Moi-ris, 13 "Wend. 325. So transactions between the legislature and municipal corporations are deemed to partake of the -ature of legislation rather than of compact. East Hartford v. Hartford Bridge Co., 10 How. 511, 634; Trustees v. Tatman, 13 lU. 27; Reynolds v. Baldwin, 1 La. Ann. 162 ; Police Jury c. Shreveport, 5 La. Ann. 661 ; Layton v. New Orleans, 12 La. Ann. 515. To return to the construction placed on the word "contracts" in other appli- cations of the constitutional prohibition : it has been held that a law is not neces- sarily void because it affects an appointment to a salaried office, for the relation between a government and it^ ullicers is not that of a contract (Butler i>. Pennsyl- vania, 10 How. 402 ; Connnonwealth v. Mann, 5 Watts & S. 418 ; Commonwealth V. Bacon, 6 Serg. & R. 322 ; Barker i'. Pittsburgh, 4 Pa. St. 49 ; Jones ^■. Shaw, 15 Tex. 577) ; nor does the prohibition, as a general projiosition, debar the States from exercising the superior right of eminent domain (West River Bridge Co. v. I>\x, 6 How. 507 ; Richmond R. R. Co, i-. Louisa. R. R. Co., 13 How. 71 ; Run- die v. Delaware, &c. Canal l.'o., 14 How. 8ii ; State r. De Lesdernier, 7 Tex. 99) ; or the right of regulating the jurisdiction or business of a court, even to the extent of delaying entry of judgment for a limited time (Johnson r. Pliggins, 3 Mete. (Ky.) 566) ; of exempting propertj' iiom exerution (Von HofTman v. Quincey, 4 Wall. 553) ; of regulating levy of execution, or the order in which several reme- dies shall be pursued (Grosvenor «. Chcsley, 48 Me. 3(19 ; Coriell v. Ham, 4 Greene, 455 ; Swift v. Fletcher, 6 Minn. 550 ; Ijccrs v. Haughton, 9 Pet. 3.59 ; Miison V. Haile, 12 Wheat. 373 ; Stnrges r. Crowuin.'.hielil, 4 Wh(!at. 200) ; or of altering laws allowing imprisonment for debt (Beers v. Haughton, 9 Pet. 359 ; Mason ^. Haile, 12 Pet. 373 ; Stnrges n. Crowninsliield, 4 AVlieat. 2n0 ; Von Ploffman v. Quincej', 4 Wall. 553) ; for these matters lelnte to the remedy rather than to the contract itself. Nor iloes it forbid a State to release its title to land because an agent i-lainjs an interest tlierein (Mulligan v. Corbins, 7 Wall 487) ; or restrain from repealing a law permitting the State to be sni-il (Beers v. State, 20 How. 527 ; Bank of Washington v. State, ib. 530) ; or from rej^ealing one provid- ing for payment of the public debt (Wilson v. Jenkins, 72 N. C. 5 ; with which compare Shaffer v. Jenkins, ib. 275) ; or one eunferring a military title and settling an annuity for life (Dale v. Governor, 3 Stew. 387) ; or from passing laws relating G CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 2 ing each party to the other, the contract is bilateral. Whea the contract binds one person to another without any engagement being made by the latter, it is unilateral. Contracts, also, are either principal or accessorial. The first are those which are entered into by the parties on their own account as princi- pals ; the second are those which are entered into for * assuring the performance of another principal con- [ * 2 ] tract, such as guarantees or engagements of sureties. Contracts, whether bilateral or unilateral, principal or acces- sorial, are made and authenticated either by parol, by deed, or by matter of record.^ to internal police, (Barlow v. Gregory, 31 Conn. 261 ; Coatesu. New York, 7 Covr. 585 ; Vanderbilt v. Adams, ib. 349 ; Baker v. Boston, 12 Pick. 184) ; or from retracting a mere license (Beer Co. v. Massachusetts, 97 U. S. 25 ; Fertilizing Co. V. Hyde Park, ib. 659 ; Stone v. Mississippi, 101 U. S. 814) ; or laws vesting in married women a sole and separate estate in their property. White v. White, 5 Barb. 474. Nor does it affect a covenant by a corporation which would control its legislative authority and duties (Presbyterian Church v. New York, 5 Cow. 538) ; or protect inchoate rights depending for their original existence on the law itself (Smith v. Packard, 12 Wis. 371 ; Robinson v. Howe, 13 Wis. 341). Nor is the mere instrument of writing the contract : the aijgrcijutio mcnliiim is what is protected. Erwiu v. Bank of Kentucky, 5 La. Ann. 4. But limits of space pre- vent pursuing these questions in further detail ; our concern is only with the question, — What is a "contract," within the sense of the constitutional clause '! Whether marriage is a contract within the prohibition, so that the States can- not enact marriage ceremonies or pass divorce laws, has been mooted ; but the better opinion is, that the States may deal with it as an institution of society, a personal relation, subject to the local law. (See ante ; also Dartmouth College v. Woodward, 4 Wheat. 629 ; Whiter. White, 5 Barb. 474 ; Stan- v. Hamilton, D(!ady, 268, 278 ; Townsend v. Griffin, 4 Harr. (Del.) 440 ; Maguire v. Maguire, 7 Dana, 189 ; State v. Kennedy, 76 N. C. 251 ; Story, Confl. L. § 200.) Nearly the same question has arisen under the civil rights legislation of Congress, viz. : Does the enactment that all persons (i. e. negroes equally with whites) shall have the same right in every State and Territory to make and enforce contracts, &c. , annul State laws forbidding marriages of whites and blacks ? The argument has been that marriage is " only a civil contract," hence that the national law embraces it. The courts have thus far answered this by saying that the civil rights law, in speaking of the riglit to make contracts, means only that the colored race may make any contract valid by the law of the State where it is made, but that marriage is not a contract in this sense. Ex parte Kinney, 3 Hugh. 1 ; Gi'een v. State, 58 Ala. 190 ; Frasher v. State, 3 Tex. App. 263 ; Franfois v. State, 9 Tex. App. 144 ; see also Ellis V. State, 42 Ala. 525 ; Ford v. State, 53 Ala. 150 ; and to the contrary. Burns v. State, 48 Ala. 195. See 21 Am. Dec. 742 and note ; 34 ib. 165. 1 Divisions of contracts as often mentioned in American jurisprudence as either of the classes explained in the text, are into express and implied ; into executory and executed ; into real, personal, and mixed ; and into private or indi- vidual, corporate, and public. The distinction between express and implied con- tracts may well be indicated by saying that the former are actual, the latter 7 * 2 FORMATION OF CONTRACTS. [BOOK I. Parol or Simple Contracts are contracts which are either made by word of mouth, or are inferred from the silent language of constructive, imputed by law rather because justice requires treatiug parties as if under contract, than because of any real supposition that they have contracted. For various purposes it is convenient to distinguish various kinds of express con- tracts : thus, there are statutory contracts, as when an act of legislation contains a proposal which is accepted by individuals ; conti-acts by record, or such as are judicially authenticated, of which a recognizance is a good example ; speciaJtie.i, or sealed contracts, which class includes all attested by a party's seal ; written or simph-ioritten contracts, which are such as are reduced to writing but do not bear seal ; and lastly oral contracts, or those framed only by word of mouth. But classifications of this kind vary somewhat in different books. "Specialty" is sometimes used as including contracts of record. Simple-written and oral con- tracts are often treated as forming one class only, called jmrol or simple contracts ; for the distinction between the two is not ancient or radiial, but arises from rules of statute (the statute of frauds, &c. ) requiring some contracts to be reduced to writing ; or of evidence, such as that forbidiling a memorandum of agreement to be varied by proof of the oral negotiations leading to it. Indeed, for the most important practical purposes the division may be into scaled (or special) and sim- ple (or parol) contracts ; Ignoring any distinction between unsealed written and oral agreements. Perrine v. C'heeseman, 6 HaUt. L. 174, 19 Am. Dec. 388 ; ■Whitehill v. Wilson, 3 Penr. & W. 405 ; 24 Am. Dec. 326 ; Quigley v. Muse, 1.5 La. Ann. 197; Stabler v. Cowman, 7 Gill & .T. 284; 7 Pars. Contr. 7; 1 Chitty Contr. 2. The employment of "verbal" in the sense of "oral" or "parol" in connection with "contract," though very common, is etymologically erroneous ; for " verbal " means embodied in words, but they may be either spoken or written, hence it is substantially coextensive with "express." Until a promise has been performed it is termed " executory ; " after perform- ance, "executed." Obviously, one of two mutual promises may have become executed while the other yet remains executory ; as where seller I>ay3 price, but buyer promises delivery in future. So, one or more of several connected promises of one party may be executed while his otln-r engagements remain executory. AVhat is usually meant by speaking of a contract as executory or executed is not that it is so as an entirety, but that the promise particularly under discussion is so. Thus, to speak of a sale for cash, of goods to be delivered in future, as an executory contract would be natural if the seller's obligation to deliver were the matter chiefly in question ; but if the controversy vidated to the buyer's payment the contract would be called executed. And "executed" is (although "execu- tory " is not) applied to contracts in a sense relating to the completion of the written instruments in which they are embodied, and not to performance of their substance. In this sense " to execute " means to complete the paper as an effective instrument ; to sign it, and to seal and deliver it whenever these formalities are essential to its inception. Thus, " executed," when spoken of promissory notes, imports deliverj' as well as making. Bagley v. JlcJIickle, 9 Cal. 430. And "execution," when used in a legal sense, with reference to a bond, implies signing, sealing, and delivery. Tiernan v. Fenimore, 17 Ohio, 54.5. In conimon-law use the adjectives "real," "personal," and "mixed" (which in the civil law have a more technical meaning : see these words in Abb. L. Diet.) are applied, according as the contract deals with land, or personalty, or both. The contracts of individuals or natural persons are called "private ; " those to which a government, State, or nation is a party are called " public ; " more par- CHAP. I.J THEIR NATURE AND CONSTITUENT PARTS. * 2 men's conduct and actions, or are put into writing and signed by the parties to them, but are not sealed and delivered. Such contracts cannot be enforced unless they are founded upon some good or valuable consideration. Thus, in order to maintain an action for the breach of a promise or undertaking not under seal, the party making the promise must have acquired some right or received some benefit, or the party accepting sucli promise must have suffered some loss, or sustained some injury or inconvenience, in consequence of the making and acceptance of the promise. This rule has been wisely established by the law for the purpose of protecting weak and thoughtless persons from the consequences of rash, improvident, and inconsiderate engagements. («)i The Consideratiou. Absence of Consideration.^ — When, at the desire of the promisor, the promisee, or any other person, ticularly, however, when the obligation of the government is the matter under discussion. In like manner, the engagements of cori^orations are styled " cor- porate contracts ; " or the kind of corijoration is indicated, as in the phi'ase " city contracts," and the like. ■•* The general doctrine that simple contracts need a consideration to render them enforceable has always been recognized in this country. Sealed instruments may be sustained on the ground of solemnity of execution, or that the seal imports a consideration (Rutherford u. Executive Committee, 9 Ga. 54 ; Patton v. Ashley, 8 Ark. 290 ; AVing v. Chase, 35 Me. 260 ; Brewer v. Bessinger, 25 Miss. 86 ; Morrow v. Smith, 10 Mo. 303 ; Schuylkill Navigation Co. v. Harris, 5 Watts & S. 28 ; yet where a parol agreement is framed for the purpose of reforming a sealed instrument, a consideration for the parol agreement will not be implied from the seal of the specialty, Sharpe v. Rogers, 12 Minn. 174) ; but a simi)le contract must have a consideration in fact. Decisions recognizing this principle have been very numerous, both at law and in equity. Doebler v. "Waters, 30 Ga. 344 ; Lowe v. Bryant, 32 Ga. 235 ; Bailey v. Walker, 29 Mo. 407 ; Thome v. Deas, 4 Johns. 84; Allen f. Allen, 40 N. J. L. 416 ; Washington, &c. Bank i). Fanners' Bank, 4 Johns. Ch. 62 ; Littlejohn v. Patillo, 2 Hawks, 302 ; Coggoshall V. Coggeshall, 1 Strobh. 43. And (except that when negotiation of commercial paper carries it to a. new holder for value, he is not obliged to show its consideration) no difference is recog- nized between simple-written, oral, and implied contracts ; a consideration is necessary to either. Brown v. Adams, 1 Stew. (Ala.) 51 ; Cook v. Bradley, 7 Conn. 57 ; Beverleys v. Holmes, 4 Munf. 95 ; People v. Shall, 9 Cow. 778 ; Burnet v. (a) "Tantum meminerimus distin- agens, aliquid pronuntiat, ut ex illis guendas esse promissiones serias, niedi- tantum, non ex his, obligatio et actio tatas et utiles ab inconsideratis, feme- oriuntur." — Vinnius, p. 661. Eastwood rariis atque inutilibus, cum quis non v. Kenyon, 11 Ad. &E. 450, 451 ; Story dispositive, ut loquuntur, nee serio, sed on Bailments, 120, 121. vel narrative, vel per jocum, et aliud 1 See Appendix, Vol. III. 9 *2 FORMATION OF CONTKACTS. [BOOK I. has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing sonietbing, such act Bisco, 4 Johns. 235 ; Clark v. Small, 6 Yerg. 418 ; Eoper v. Stone, Cooke, 497 ; Pen-iuev. Cheeseman, 11 N. J. h. 174; Mosby u. Leeds, 3 Call, 439. It has, however, been well remarked that there is a distinction between the motive for entering into a contract and the consideration of the contract. Noth- ing is a consideration which the parties do not regard as such. An expectation of certain results may be the motive, yet neither the expectation nor the result enters into the consideration. I'liilpot -o. Grunniuger, 14 Wall. 510. For gen- eral discussions of the necessity, nature, and adequacy of considerations, see 1 Pars. Contr. 427-474 ; Poll. Contr, 147-165. By WL'll-settled rules, a consideration may be either some advantage or benefit reserved to the promisor, or some loss, tiouble, or disadvantage assumed by the promisee. Tompkins v. Philips, 12 Ca. 52 ; Molyneux i'. Collier, 17 Ga. 46 ; Doyle V. Knapp, 4 111. 334 ; Buchanan v. International Bank, 78 111. 500 ; Watt V. nice, 1 La. Ann. 2S0; Canifrancn v. Pilie, lb. 197 ; Warren v. Whitney, 24 Me. 5ol ; Hartzell v. Saunders, 49 Mo. 4u3 ; Conover r. Stillwell, 34 N. J. L. 54 ; White ( . Baxter, 71 N. Y. 254. Advantage or benefit to the promisor need not be of certain, definite nature, or of large importance or value ; the gratification of a wish, if lawful, a contingent benefit, prevejition of a probable Iosk, discharge of a debt or obligation in behalf of the promisor, ujay be sufficient (Bell o. Green- wood, 21 Ark. 24!i ; Barringer r. Warden, 12 C'al. 311 ; Seymour v. Harvey, 8 Conn. 63; Xewhall v. I'aig-, 10 Cray, 366; Cantey v. Dirreu, Harp. 434; Odineal 1'. Barry, 24 Miss. U ; Hailan v. llailan, 20 Pa. Ht. 303) ; or a very slight advan- tage to one party, or a trifling inconvenience to the other, if promisor is a man of good capacity, who is not at the time undei" the influence of any fraud, impo- sition, or mistake (Harlan v. Harlan, 20 Pa. St. 303) ; or where relationship of jiarties suggests natui'al affection in aid of the nominal money coirsidcration paid (Haines c. Haines, fi Md. J35). Kven delivery of notes to an agent has been held suHicii'nt consideration to .sustain his engagement to endeavor to collect them; no payment for his services having been stipulated. Robinson u. Tbreadgill, 13 Ired. L. 39. The division of a debt and acceptance of notes payable at different times creates a valid obligation on tlie jiart of the creditor not to sue on the orig- inal claim bpfore a default in the payment of one of the notes. Moutonw. Noble, 1 La. Ann. 192. A promise to indemnify the promisee against any loss he may incur iu resisting a demand of the third person which the promisor claims is unlawful, is for good consideration, and may be enforced, if the icsistance will entail .serious risk or loss on the promisi-e. White u. Baxter, 71 N. Y. 2.'i4. The law does not rerpiire that a benefit should accrue to the |irrson making the promise ; if something valuable flows from the person to whom it is made, or he suffers some prejudice or inconvenience, or incurs an ex]iense or charge, and the promise is the induce- ment to his doing so, this is sutficient. Violett u. Patton, 5 Ciaiieli, 142, 150; Towiilev V. Snmrall, 2 Pet. 170, 182 ; Clark v. Sigonrney, 17 Conn. 511 ; Glasgow V. Hobbs, 32 Ind. 440 ; Lemester v. Burckhart, 2 Bibb, 30 ; Oveislrct v. Phili]is, 1 Litt. (Ky.) 120 ; AVooldridge v. I 'ates, 2 J. J. llar,h. 222 ; Hilton r. Southwick, 17 Me. 303 ; Lent v. Padelford, 10 Mass. 230 ; Train v. Cold, 5 Pick. 380 ; Pitt V. fieiitle, 49 Mo. 74 ; Carre. Card, 34 Mo. 513; Farmers. Stewart, 2 N. H. 97; Underbill v. Gibson, Id. 352 ; Miller v. Drake, 1 Cai. 45 ; Powell v. Brown, 3 Johns. 100; White v. Baxter, 71 N. Y. 254; Cailleux v. Hall, 1 E. D. Smith, 5; Seaman v. Seaman, 12 Wend. 381 ; Brown v. Pay, 10 Ired. L. 72 ; Watkins v 10 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 2 or abstinence or promise is called a consideration for the promise. (&) Gratuitous promises and undertakings, not clothed James, 5 Jones L. 105 ; Eandle v. Harris, 6 Yerg. 508 ; Dorwin v. Smith, 35 Vt. 69 ; Mosely v. Bonsh, 4 Rand. 392. Examples of cases in which agreements have been sustained on the groaud tliat the promisee snffered somewhat, and irre- spective of whether the promisor gained aught, are ; where promisee has released a demand, satisfied a judgment, or the like, which he Ijeld against a third person (Kenan u. Holloway, 16 Ala. 53 ; Taylor v. Meek, i Blackf. 388) ; or wliere he does something for the benefit of a third person, at promisor's request (Violett V. Patton, 5 Cranch, 146 ; Wiggins i. Keiyer, 6 lud. 252 ; Watt v. Rice, 1 La. Ann. 280) ; or where he makes successful elforts to procure a certain house, post- office, railroad station, or other public improvement to be erected in some locality particularly desired by the promisor. Bryan v. Dyer, 28 lU. 188 ; Kennedy v. Cotton, 28 Barb. 59. It has been held a good consideration for an agreement to pay a teacher in- creased compensation, that he consented to hold his place at the will of trustees, instead of holding it as before, from year to year, upon the ground that such change in the tenure of his situation was a detriment to himself, as well as, under the circumstances, a benefit to the trust. Hildi-eth v. Pinkerton Academy, 29 N. H. 227. And generally a waiver of a legal right at request of promisor is a sufficient cousider.ation for his promise given to iuduce it. Sykes v. Lafferry, 27 Ark. 407 ; Sanford i: Huxford, 32 Mich. 313. Mutual or reciprocal promises liave often been held to form each a sulEcient consideration for the other, irrespective of any apparent equality of value. (Con- sult Thomason v. Dill, 30 Ala. 444 ; Abrams v. Suttles, Bush. L. 99 ; Seward v. Mitchell, 1 Coldw. 87 ; Young v. Snyder, 3 Grant Cas. 151 ; White v. Demilt, 2 Hall, 405 ; Funk v. Hough, 29 111. 145 ; Downey v. Hinchman, 25 Ind. 453 ; Leaoh v. Keach, 7 Iowa, 232 ; Whitehead v. Potter, 4 Ired. L. 257 ; Briggs v. Tillotson, 8 Johns. 304 ; Forney v. Shipp, 4 Jones L. 527; Babcock v. Wilson, 17 Me. 372; Appleton v. Chase, 19 Me. 74; Nunnally i). White, 3 Mete. (Ky.) 584; Byrd v. Fo.\% 8 Md. 574 ; Congregational Society v. Perry, 6 N. H. 164 ; George v. Harris, 4 N. H. 533 ; Coleman v. Eyre, 45 N. Y, 38 ; Briggs v. Sizer, 30 N. Y. 647 ; Commissioners v. Perry, 5 Ohio, 58 ; Nott v. Johnson, 7 Ohio St. 270.) They must, however, be substantially simultaneous, — made in view of each other. Livingston v. R.ogers, 1 Cai. 583 ; Keep v. Goodrich, 12 Johns. 397; Tucker o. Woods, Id. 190 ; James v. Fnlerod, 5 Tex. 512. But it is not strictly essential that mutuality of obligation should exist between the parties at the very time when the promise in question was made. Marie v. Garrison, 83 N. Y. 14. If one promises another to pay the latter a sum of money if he will do a par- ticular act, and the latter does the act before the revocation of the promise, the promise becomes binding, even though the promisee did not, at the time when the offer was made, engage to do the act ; for the previous promise amounts to a request to do the act, and performance of the act is an acceptance. Barnes v. Ferine, 9 Barb. 202. Promises to pay a pre-existing debt of another person are within the rule, and require some consideration, moving from the creditor to the sponsor or surety. Beall V. Padgeway, 18 Ala. 117; Comstock v. Breed, 12 Cal. 286; Cutler v. (b) This is the definition of "consideration" given in the Indian Contract Act of 1872. 11 * 2 FORMATION OF CONTEACTS. [BOOK I. with the formalities prescribed by the civil law to render them legally binding, were termed by the civilians nuda pacta, or Everett, 33 Me. 201 ; Aldridge v. Turner, 1 Gill & J. 427 ; Tenney v. Prince, 4 Pick. 387 ; Chaffee v. Thomas, 7 Cow. 358 ; Bailey v. Freeman, 4 Johns. 280 ; Leonard j). Vredeuburgh, 8 Id. 29 ; Chavin v. Labarge, 1 Mo. 556 ; Pfeiffer v. Kingsland, 25 Mo. 66 ; Heading R. R. (A., o. Johnson, 7 Watts & S. 317 ; Cobb J'. Page, 17 Pa. 8t. 469 ; Oilman i'. Kibler, 5 Humph. 19 ; Whelan v. Edwards, 29 Ga. 315 ; Richardson v. Williams, 49 iMe. 558 ; Parker v. Carter, 4 Mnnf. 273; Chandler v. Hill, 2 Hen. & M. 124 ; Barlow u. Smith, 4 Vt. 139. And so of promises to answer for another's default (Ellison v. Jackson Water Co., 12 Cal. 542 ; Hawley v. Farrar, 1 Vt. 420) ; or to perform an engagement of another in his place (Smith v. Mudgett, 20 N". H. 527) ; thus the lack of an independent consideration has been held to avoid a promise by a master to pay stolen money received by his slave, which has not come to his own hands (Jelks v. ilcRae, 25 Ala. 440) ; a guaranty or indorsement in blank of a note (Aldridge v. Turner, 1 GiU & J. 427 ; Tenney v. Prince, 4 Pick. 385 ; 7 Pick. 243) ; a promise by A to pay the debt of B, when he should be in possession of funds belonging to B. (Pope V. Fort, 2 McMuU. 60) ; a promise by a debtor to pay his debt to a third person, except where the creditor has released the debtor, or assigned the debt to such third person (Pbalan v. Stiles, 11 Vt. 82) ; a promise to pay the debt of anotlier, at the end of one year, leaving the debt to be enforced in the interval against the debtor (Russell o. Buck, 11 Vt. 166) ; a promise by a son to pay the debt of his father (Parker v. Carter, 4 JIunf 273). Subscription-papers have given rise to a number of decisions on the question of consideration. The early view, of course, was that a simple promise to give money in the future is not enforceable, but is a nude pact, and must be treated as a mere declaration of intention. The fact that the purpose is charitable or advan- tageous to the public, or that the promise was reduced to writing, or even that the writing stipulates that a ajiecified sum shall be subscribed before any are bound, and this sum is reached, does not sustain it. Briilgmatcr Acadenjy v. Gilbert, 2 Pick. 579 ; Methodist Orphans' Home Assoi.iation v. Sharp, 6 Mo. Apji. 150 ; Hamilton College v. Stewart, 1 N. Y. 581 ; Stuart v. Valley R. R. Ci., 32 Gratt. 146. But many exceptions or qualilications are recognized. If several persons unite in signing successively the same paper, or promising donations for the same object, a case of mutual promises is presented, each subscription is deemed to have been made in consideration of the otlicrs, and all are thus sus- tainable. Pryor v. Cain, 25 111. 292 ; Donald v. Gray, 11 Iowa, 508 ; Watkins V. Fames, 9 Cush. 537; Underwood v. Walilron, 12 Mich. 73 ; Trustees v. Stetson, 5 Pick. 506 ; Amherst Academy d. (Jowls, 6 Pick. 427 ; Comstock v. Howd, 15 Mich. 237 ; George v. Harris, 4 N. H. 533 ; Society v. Perry, 6 N. H. 164 ; Bap- tist Society v. Robin,son, 21 N. Y. 234; State Treasurer o. Cross, 9 Vt. 289 ; Truy Academy v. Nelson, 24 Vt. 189 ; Eyeleshimer v. Van Antwerp, 13 Wis. 546. Again, if conditions are expressed in a subsi-rijition-paper, and these are performed, the performance may furnish a consideration for the subscriber's promise. Nor- ton V. Janvier, 5 Harr. (Del.) 346 ; Parsonage Fund v. Ripley, 6 Me. 442 ; Wil- liams College V. Danforth, 12 Pick. 541 ; State Treasurer v. Cross, 9 Vt. 2S9. Even where the subscription-paper did not contain any condition or consideration, but the declaration on it and the evidence showed that the consideration was the agreement of the plaintiffs to remove an old church and build a new one, and that they had done both, the plaintiffs were held entitled to recover. Barnes v. Ferine, 15 Barb. 249. And quite generally, where advances have been made or 12 CHAP. I.J THEIE NATURE AND CONSTITUENT PAETS. * 3 naked engagements, and did not induce any legal rights ; for it was thought better, we are told, to let such contracts rest upon the mere integrity and good faith of the parties who made them, than to subject them to the compulsory authority of the law. (c) Bracton, who wrote in the time of Hen. III. is the first of our lawyers who treats of naked promises and promises clothed with a consideration, and advocates, in the language of the civilians, the well-known principle, ex nudo pacta non oritur actio, {d) In "Doctor and Student" it is observed, "A nude or naked promise is where a man promiseth another to give him certain money such a day, or to build a house, or to do * him such [ * 3 ] certain service, and nothing is assigned for the money, for the building, or for the service. These be called naked promises, because there is nothing assigned why they should be made ; and I think no action lieth in those cases, though they be not performed. . . . Also, if I promise to another to keep him such certain goods safely to such a time, and after I refuse to take them, there lieth no action against me for it ; for if the promise be so naked that there is no manner of consideration why it should be made, then is a man not bound to perform it ; for it is to suppose that there was some error in the making of the promise." (e) But if a man is entrusted with and receives expenses or liabilities incurred by other persons, in fair and reasonable reliance on voluntary subscriptions and before notice of the subscriber's withdrawal, this will be deemed suificient to make the subscriptions obligatory. Gittings v. Mayhew, 6 Md. 113 ; Homes v. Dana, 12 Mass. 190 ; Farmington Academy v. Allen, 14 Mass. 172 ; Underwood v. Waldron, 12 Mich. 73 ; Ohio Wesleyan Female Col- lege V. Love, 16 Ohio St. 20 ; Hopkins v. Upshur, 20 Tex. 89 ; Doyle v. Glass- cock, 24 Tex, 200. But see Church v. Kendall, 16 Am. L. Reg. N. s. 546 and note, ib. 648. A subscriber is bound by his subscription, if the purpose is lawful, and the duty of receiving the money subscribed has been assumed by a party duly designated ; or, in case none is designated, if expense has been incurred in fair reliance upon the subscription. Underwood v. Waldron, 12 Mich. 73. More- over, it is not difficult so to frame a subscription -paper that the efforts and labors of the promoters in procuring subscriptions and otherwise advancing the public object desired, shall appear as a consideration of each subscription. And Parsons thinks (1 Pars. Contr. 454) that a seal opposite each name, or even one seal with a declaration in the heading that each subscriber adopts it as his, may take the place of a consideration, and render the subscriptions enforceable. (c) Vin. Com. de Instit. 658, 659, (e) Doct. & Stud. Dial, 2, chap. 24; ed. 1755. Plowd. 309 a. Shep. Touch. 224, 225 ; Elsee v. Gat- (d) Bracton, lib. 3, cap. 1, fol. 99, ward, 5 T. R. 143, 148. ed. 1569. 13 * 4 FORMATION OF CONTRACTS. [BOOK I. money or goods on the faith of a promise to deal with them in a particular manner, an action can be maintained against him for any loss or injury that may be sustained by reason of a breach of the promise, although the duty or trust may have been undertaken gratuitously. Thus a promise to give any particular thing, such as a horse, or a colt, or a watch, to another, unaccompanied by an actual or constructive transfer or change of |)ossession, is a mere nudum 'pactum, and cannot be enforced by compulsion of law, (/) A promise by one man to pay a debt already incurred by anotlier is a nudum pactum ; and so also is a promise by a creditor to accept less than the full amount of an admitted debt, or to give time for the payment thereof ; {g) also a promise to pay mono)' to a person not entitled to receive it ; (A) a promise V)y the heir to pay tlie bond of his ancestor, when the heir is not bound by the bond ; a promise by a widow to pay lier husband's debts, or to pay a note given by her wlien under coverture, {i) And, where a specific sum is fixed as tlie jmce of goods sold and de- livered, or as an agreed remuneration for work and services, a subseo[uent promise, without any new consideration, to pay an additional sum for the same work or the same services is a nudum pactum. (JS) Where, however, a man makes a represen- tation on the faith of which another man alters his position, the man making the representation is bound to perform it, for in the eye of a court of equity it is a contract. (I) [ * 4 ] * A promise or agreement to make a duty of a limited (/) Donaldson v. Donaldson, Kay, separate estate, .snch a note is a good 718 ; Milroy v. Lord, 31 L. J. Ch. 798. consideration for another note given by By the civil law gifts were required to her after her husband's death for a bal- be xaiblicly registered. Cod. lib. 8, tit. ance then due, although the former note 64 ; Dig. lib. 42, tit. 8. is barred by the statute of limitations. (.g) Fitch 41. Sutton, 5 Ea,st, 232; La Touche i'. La Touche, 3 H. & (.:. 57(i; Pinncll's Case, 5 Co. 117 «, 117 i ; 34 L. J. Exch. 85. Cooper V. Phillips, 1 C. M. & E. 649. (k) Harris r. "Watson, Peake, K. 102; {h) Clay V. Willis, 1 B. & C. 364. Brown v. Crump, 1 Marsh. 567; New- (j) Barber v. Fox, 2 Saund. 135, man v. 'Wiilters, 3 B. & P. 612. 137 /t ; 1 Vent. 159; Lloyd r. Lee, 1 (/) Per Bacon, V. C, in Dashwoodr. Str. 94 ; Goodwin D. Willonghby, Latch, Jerniyn, 12 Ch. D. 781, citing Ham- 142; Fabian v. Plant, 1 Show. 178. raersley r. De Biel, 12 CI. & F. 45, 61 n., But as a i)romissory note given by a and other cases, and see post, p. * 207, married woman as a security for ad- Estoppels in pais; antipost, p. *1133. vances made to her husband binds her 14 CHAP. I.] THEIU NATURE AND CONSTITUENT PARTS. * 4 nature more extensive, and to undertake a greater liability tlian is imposed by law upon the jjarty making the promise, is a nudum, pactum, unless there be some fresh consideration. The promise of an executor or administrator, for example, to pay the debt of his testator or intestate, (ni) does, in no degree, alter or extend his liability. The executor does not, by such a promise, I'ender himself personally liable, but is only chargeable to the amount of his assets. Valuable Consideration.^ — Neither " love and affection," nor "blood relationship," (ii) nor "friendship," constitute a sufficient cause or consideration for the fulfilment by coercion of law of an undertaking or promise not under seal, (o) The performance of an act which tlie party is under a legal obligation to perform cannot constitute a good consideration for a promise. " If," for example, " a debtor, being bound by law to give up the title-deeds of an estate to a purchaser, pursuant to a decree of sale, enters into an agreement with the purchaser to deliver them to him on payment of a sum of money, the debtor is not only without any right of action for enforcing such an agreement, but if the money is paid, lie is himself subject to an action for the recovery of it back." {p) So, if a debt is released or discharged, the giving up of a deed or collateral security orig- 1 Some American cases sustain the position of the text, that natural affection may sustaiu an executed conveyance or gift, but not an executory promise. Con- sult Kirkpatrick r. Taylor, 43 111. 207 ; Ford v. Ellingwood, 3 Jlet. (Ky.) 359 ; Pennington v. Gittings, 2 Gill & J. 208 ; DuvoU v. Wilson, 9 Barb. 487 ; Hayes V. Kerahow, 1 Sandf. Ch. 258 ; Priester v. Priester, Eich. Eq. Gas. 26 ; West v. Cowins, 74 Ind. 265. That marriage is not only a good but even a valuable con- sideration for a promise given to induce the marriage, or on the faith of which it is contracted, see Anderson v. Green, 7 J. J. Marsh. 448 ; Waters v. Howard, 8 Gill, 262 ; Whelan o. Whelan, 3 Cow. 537 ; Wood v. Jackson, 8 Wend. 9 ; Gnrviu c. Cromartie, 11 Ired. L. 174; Chichester v, Vass, 1 Munf. 98. Mar- riage is a valuable consideration, and a married woman is regarded as a purchaser for value of all property which accrues to her by virtue of the marriage or of an antenuptial agreement. Derry v. Derry, 74 Ind. 560; Magniac u. Thompson, 7 Pet. 348; 4 Kent Com. 463, and cases there cited. (yn) Pearsan v. Henry, 5T. E. 6 ; (o) Harford «. Gardner, 2 Leon. 30; Eann v. Hughes, 7 T. E. 350, n.; Mit- HoUiday v. Atkinson, 5 B. & C. 501 ; 8 chinson v. Hewsou, ib. 348. D. & E.']63; Cluff «). Moore, 1 Sid. 413; (n) Tweddle v. Atkinson, 1 B. & S. Lampleigh v. Braithwaite, Hob. 105. 393. (;>) Pothier, by Evans, p. 25. 15 *5 FORMATION OF CONTRACTS. [BOOK I. inally deposited with the creditor to secure the payment of the debt cannot form a good consideration for a promise ; for, by the release of the debt, the security is released, and the creditor is no longer justified in retaining it. (q) But the performance of an act a person has agreed with another to perform is a good consideration to support a promise by a third person, if the latter derives a benefit from the performance. (r)2 A promise to pay money to a sheriif in consideration of his executing a writ is also a nudum pactum ; and so, also, is a promise to pay money to a witness regularly subpcenaed to give evidence at a trial, as a compensation for his loss of time ; be- cause, in each of these cases, the parties are bound by law to do the acts in question, without compensation or reward, (s) It has been held, also, that a promise to pay money to the crew [ * 5 ] of a vessel, as an * incitement to exertion during a storm, is a nudum pactum, and cannot be enforced, because the sailor is bound to do his utmost to save and preserve the vessel ; {t) but if any extraordinary and additional services have been rendered beyond what the parties were in strictness bound to perform, there is a sufficient foundation for tlie promise, and the law will enforce its faithful performance. («) If, therefore, a vessel is so short-handed as to render it dangerous to life to pro- ceed to sea, and the crew are not bound under their articles to sail with so small a complement of seamen, a promise of additional remuneration in consideration of the increased risk is valid and binding, {x) A promise not to abuse the process of the law, as, for instance, to conduct proceedings in bankruptcy so as to avoid, as far as possible, injury to the debtor's credit, will form no con- sideration for a promise by the debtor, (y) (q) Cowper v. Green, 7 M. & "W. (/) Harris v. "Watson, Peake, 102 ; 6-41- Stilk V. Myrick, 2 Campb. 317 ; 6 Esp. (r) Scotson v. Pcgg, 6 H. & N. 295 ; 129 ; Newman v. Walters, 3 B. & P. 30 L. J. Exch. 225. 615. (s) BridKB v. Cage, Cro. Jac. 103 ; (tt) England^. Davidson, 11 Ad. & E. Willis V. Peckkara, 4 Moore, 300 ; Col- 856. lins V. Godefroy, 1 B. & Ad. 956; Dixon (x) Hartley v. Ponsonby, 7 Ell. & Bl. V. Adams, Cro. Eliz. 538 ; Jackson v. 872 ; 26 L. J. Q. B. 322." Cobbiu, 8 M. & W. 797; Nokes v. Gib- (i/) Bracewell v. Williams, L. E. 2 bon, 26 L. J. Ch. 208. C. P. 196. 16 2 ggg Appendix, Vol. III. CHAP. I.] THEIR NATURE AXD CONSTITUENT PARTS. * 6 Fraudulent Consideration.^ — Corrupt or fraudulent considera- tions will not support a promise. Thus, where the defendants, in consideration of the plaintiff promising to obtain a contract from a company in relation to which he was in a position of trust, contracted to pay him a commission, it was held that he could not recover, for although the jury found that he had not been induced by such consideration to act corruptly, yet such consideration was in itself corrupt, (z) So, also, as we shall see, (a) illegal and immoral contracts, and such as are against public policy, cannot be enforced, and this is sometimes because the consideration for the promise is bad, and sometimes, although the consideration is good, yet the promise is bad.3 Sufficient Considerations^ — Works and Services. — By the civil law, if any one agreed to perform or effect anything on the understanding that another in his turn should do something, or give or deliver something, the person in whose favor the thing had been so delivered or done was not permitted to be deficient in performing what was stipulated on his part, but was compelled to performance, so that, if there was a cause or con- sideration facti vel traditionis, a coiTesponding obligation or duty arose. So, by the common law, if anything is performed or done which the party is under no legal obligation to perform or do at the request of the promisor, as the consideration or inducement for the promise whereby the promisor or party *making the promise has e.xpected to obtain or [ * 6 ] secure for himself some benefit or advantage, or whereby the promisee, or party to whom the promise has been made, has been expected to sustain some trouble or loss, or suffer some injury or inconvenience, there is a sufficient consideration to render the promise obligatory in law, and capable of sustaining an action. Thus, the mere surrender and delivery of a letter or 1 Fraud in the consideration is usually urged as reason for avoiding a contract, or in defence of some action founded on it. Hence the topic of fraudulent con- sideration is chiefly discussed in chapter ii. of Book V. post, § 2, p. * 1173. ^ The general subject of sufficiency is treated more fully at page *12, post, under the heading, "Adequacy of Consideration," where American cases are mentioned. (z) Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549. (a) Post, p. »1135. 3 See Appendix, Vol. III. 17 VOL. I. 2 * 6 FORMATION OF CONTRACTS. [BOOK L other written document whicli the promisee has a right to keep and retain in his possession is a sufficient consideration for the promise, although the possession of it may turn out eventually to be of no value in a pecuniary point of view, or no benefit may have resulted to the one party, nor prejudice to the other, from the surrender and delivery of the document. (6) If one person agrees to transfer, and another person agrees to accept, shares in a public company, upon which shares nothing has been paid, and which have no marketable value at the time of the transfer, the agreement constitutes a binding contract, (c) If the defendant has promised the plaintiff to pay him a sum of money in consideration of the plaintiff's procuring a tenant for the defendant, or getting him a sale or purchase and convey- ance of a particular estate, there is a good and valid considera- tion for tlie promise, (d) A Consideration of Loss or Inconvenience,^ sustained by one party at the request of another, is as good a consideration in law for a promise by such other as a consideration of profit or con- venience to himself It is sufficient, if there be any damage or detriment to the plaintiff, though no actual benefit accrue to the party undertaking, (e) If the plaintiff has become security for the promisor, or has accepted bills, or imposed upon himself any legal liability at the request of the latter, there is a sufficient consideration to support a promise and render it binding in law, although no actual benefit or advantage has resulted to the promisor. (/) Any trouble or labor, too, however slight, under- taken by the plaintiff at the request of the defendant, will sup- port a promise by the latter, and render it binding, although such trouble and labor may have been unsuccessful, and pro- ductive of no benefit or advantage to the defendant, (g)^ Where 1 See page * 2, mite, American note. (b) Wilkinson v. OHveira, 1 Bing. N. (d) Seaman v. Price, 1 Ry. & Mood. ('. 490 ; 1 Scott, 461 ; Haigh v. Brooks, 195. 10 Ad. & E. 320, 334 ; 4 P. & D. 288 ; (e) Bunn v. Gm', 4 East, 194 ; Jones Thomas v. Thomas, 2 Gale & Dav, 226 ; v. Ashburnham, ib. 466. Westlake v. Adams, 27 L. J. C. P. 271 ; (/) Bailey v. Croft, 4 Taimt. 611 ; 5 C. B. N. s. 248 ; Smith v. Smith, 13 Williamson v. Clements, 1 Taunt. 523. C. B. N. s. 429. (fi) Sturlyn v. Albany, Cro. Eliz. 67 ; (c) Cheale v. Kenward, 3 De G. & J. March v. Culpepper, Cro. Car. 70. 27 ; 27 L. J. Ch. 784. 18 4 See Appendix, Vol. III. CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 7 tlie defendant promised a reward to whoever would give such information as would lead to the conviction of a felon, and the plaintiff gave the necessary * information, it was [ * 7 ] held that the service rendered was a sufficient considera- tion for the promise, and that the plaintiff was entitled to recover the reward, although he was a constable and police-ofl&cer of the district where the felony was committed. Qi) And where the father of an illegitimate child promised the mother to pay her 2s. &d. a week if she would abstain from affiliating the child, and the mother did abstain, it was held that the father was bound to make good the weekly payment, (t) But a promise, on the abandonment of an immoral connection with a woman, to pay • her a sum of money or an annuity, in consideration that she will thenceforth lead a good and virtuous life, is not binding. (^■) Works and Services rendered to a Third Party at the Request of the Promisor.! — ^^y service, benefit, or advantage rendered to ' To like effect with the text, that services rendered to a third person, though not directly beneficial to promisor, may support his promise to pay for them, are ; Miller v. Drake, 1 Cai. 45 ; Ayer v. Hay, 2 Mill, Const. 365. But a promise to pay must be distinguished from a mere request to render such services. For example, the weight of American authority is that one by merely calling a phy- sician or surgeon to attend a third person does not render himself liable for the fees (Boyd v. Sappington, 4 Watts, 247); an express undertaking on his part to pay, or circumstances to warrant an inference to that effect (Smith v. Watson, 14 Vt. 332; Crane v. Baudouine, 55 N. Y. 256; compare Potter v. Virgil, 67 Barb. 578 ; Bradley v. Dodge, 45 How. Pi-. 57), some relation between him and the patient — father and minor child, for example — by which he is liable for neces- saries furnished to the latter (Deane v. Annis, 14 Me. 26), or a promise to pay, or some other special facts must be shown. A person in fault for inflicting an in- jury who should call a physician to treat it, probably might be held liable directly to the latter ; but if so it would be on the ground that the moral obligation aided the action. Somewhat of this nature are the cases in which a railroad passenger or employee has been hurt on the road, and some agent of the company has called a physician or surgeon to treat the case. The courts have said that, even conceding that the management of the road was in fault for the injury, so that the company is liable to the sufferer for expenses of treatment, yet it does not follow that the (h) England v. Davidson, 11 Ad. & E. 36 L. J. Q. B. 112 ; Bent v. Wakefield 856 ; Smith v. Moore, 1 C. B. 438 ; Bank, 4 C. P. D. 1. Thatcher v. England, 3 C. B. 254 ; 15 (j) Linnegar v. Hodd, 5 C. B. 437 ; L. J. C. P. 241 ; Lockhart v. Barnard, 17 L. J. G. P. 106 ; Crowhurst v. Lave- 14 M. & W. 674 ; 15 L. J. E.tch. 1 ; rack, 8 Exch. 213. Turner v. Walker, 6 B. & S. 871 ; L. E. (k) Binnington v. Wallis, 4 B. & Aid. 1 Q. B. 641 ; 35 L.J. Q. B. 179 ; s. c. 650, Parke, B. ; Jennings v. Brown, 9 affirmed on appeal, L. R. 2 Q. B. 301 ; M. & W. 501 ; Beaumont v. Eeeve, 15 L. J. Q. B. 142. 19 *8 FOKMATION OF CONTRACTS. [BOOK I. a third person at the request of the promisor, is a sufficient con- sideration for the promise. Thus, if one person should say to another, " heal such a poor man of his disease," or " make an highway,'' and I will give thee so much, and he doetli it, an action lieth at the common law. (I) A captain of a company of foot soldiers, at the request of the defendant, gave leave of ab- sence to a soldier on the faith of a promise by the defendant that the soldier should return in ten days, or that the defendant would pay the captain 201. ; and it was held that the leave of absence so given was a sufficient consideration for the defend- ant's promise, and that the captain, consequently, was entitled to maintain an action for the breach thereof (rii) So, where the defendant promised the plaintiff to pay him 100/. if the plain- tiff would bail the defendant's servant, who had been cast into prison, it was held that there was a sufficient consideration for the promise, (n) Where the father of an illegitimate child pro- mised to pay the mother an allowance of 60/. a year during her life, in consideration that she had at his request undertaken, and then had, the care and nurture of the child, and would thence- forth continue to take charge thereof, it was held that there was a sufficient consideration for the promise, and that the executors of the father, after his decease, were bound to continue the pay- ment of 60/. a year to the mother, (o) And where the promise was to pay the mother 100/. a year for life if she would [ * 8 ] * bring up the child properly, and the mother did so, it was held that the annuity could not be withdrawn, (j?)^ medical man can demand payment from the company directlj"", unless the agent who called him had authority to bind his employer.? in that regard. An Illinois decision (Cairo, &c. R. E. Co. v. Mahoney, 82 111. 73) seems to hold that a "gen- eral superintendent " has implied authority of this character, while a New York case (Stephenson v. New York & Harlem R. E. Co., 2 Duer, 341) is to the con- trary. As to station agent.s, conductors, and subordinate employees, there is no presumption that they have this authority. A physician who, upon the simple request of one of these, treats one injured by the operation of the road, and charges the company, has the burden of proving that the agent had authority to make the request. A ratification of agent's act, however, though slight, will be sufficient to charge the company. Cairo, &c. R. R. Co. v. Mahoney, 82 111. 73. (Q 1 RoUe Abr. Action sur case. (o) Jennings v. Brown, 9 M. & W. (m) Taylor v. Jones, 1 Raym. 312. 496. (n) Hunt V. Bate, Dyer, 272 a. (p) Hicks v. Gregory, 8 C. B. 383 ; 19 L. J. C. P. 81 ; 7 C. B. 716. 20 5 See Appendix, Vol. III. CHAP. I.J THEIR NATURE AMD CONSTITUENT PARTS. * 8 Past Consideration.! — Bygone acts or services (j) cannot be made a good consideration for a promise. A promise, for ex- ample, to pay the plaintifi" 20/. in consideration that the plaintiff 1 To like effect with the text are numerous American cases, holding that a con- sideration already completely executed and past will not support a promise, unless such consideration was induced by the request of the promisor ; though a request for value, followed by siipplying'it, and this followed by a promise to pay for it, creates alegal obligation to make the payment. Lonsdale v. Brown, 4 Wash. 148 ; Bulkley v. Landon, 2 Conn. 404 ; Carson v. Clark, 2 111. 113 ; Allen v. Woodward, 22 N. H. 544 ; Livingston v. Rogers, 1 Cai. 583 ; Comstock v. Smith, 7 Johns. 8/. But the courts favor proof of the necessai'y anterior request : one may be inferred by the jury from the circumstances of the case. Hicks v. Burhans, 10 Johns. 243 ; Wilson V. Edmonds, 24 N. H. 517, 546 ; Doty v. Wilson, 14 Johns. 378. Services rendered to the United States Government during the war of 1861-65, by volunteers mustered into the Government military service, have repeatedly been held sufiicient consideration for a gift or promise by a town of a sum by way of a bounty for volunteering, additional to the soldier's pay as soldier (Keough V. Scott County, 28 Iowa, 337 ; Kittridge v. AValdron, 40 Vt. 211 ; Seymour v. Marlboro, ib. 171 ; see also Hitchcock v. Litchfield, 1 Root, 206 ; Stone v. Dan- bury, 46 N. H. 139; Richardson v. Concord, 40 Vt. 207) ; for they enured di- rectly to relieve the town of its obligation to furnish a quota of its inhabitants toward the number of men needed, by the Government (Seymour v. Marlboro, 40 Vt. 171 ; Clark County i>. Lawrence, 63 111. 32). In like manner, military service rendered by one individual as substitute for another liable to be compelled to serve, is a sufficient consideration for the latter's promise to pay a sum additional to the substitute's pay. Harter v. Bomberger, 47 Pa. St. 492. The liability of municipalities in these cases was placed distinctly on the ground of contract, viz., that, the city or town having offered the bounty, and the volunteer having accepted it, and upon the faith of it enlisted, &c., obligation to pay as promised arose. Hence, without proof of any formal negotiation between corporate authorities and the volunteer, or that he knew of the precise terms of the offer of bounty, he might recover on general evidence that the corporation duly offered a bounty for volun- teers, that he acquired knowledge of such an offer being published, and that on the faith of it he enlisted, was credited on the corporation's quota, and served sufficiently to relieve the corporation. Larimer v. McLean County, 47 111. 36 ; Hoboken v. Bailey, 36 N. J. L. 490 ; Davis v. Landgrove, 43 Vt. 442 ; Roach v. Menomee, 24 Wis. 527 ; compare, however, Guyette d. Bolton, 46 Vt. 228. On the other hand, one who enlisted before offer of bounty was made could not re- cover merely because he was credited upon the quota of the municipality from which he came, and thus benefited it (Frey v. Fond du Lac, 24 Wis. 204) ; nor be- cause he erroneously supposed an offer had been made, and one afterwards was (Wells V. Scott County, 36 Iowa, 141; see also Amity w. Reed, 62 Pa. St. 442 ; Hobo- ken V. Bailey, 36 N". J. L. 490). The enlistment must have been founded on the offer, and have been substantially within its terms. Carley v. Highgate, 45 Vt. 273. So a resolution of a municipal council, that the men should be paid an additional bounty, passed after a draft was completed, the quota filled, the men mustered in, and the nranicipality effectively relieved from the draft, was held void for want of consideration. Susquehanna Depot v. Barry, 61 Pa. St. 317. (?) But where there is a request and sufficient to support a subsequent pro- an act done in pursuance thereof, that is mise, see infra. 21 * 8 FORMATION OF COXTEACTS. [BOOK I. "had delivered" to the defendant twenty sheep, or a promise to lend the plaintiff 201. iu consideration that the plaintiff " had formerly lent" that sum to the defendant, is a nudum pac- tum, and incapable of sustaining an action, (r) for, the thing having been done and executed before the promise was made, cannot be said to be a consideration for it ; but, if the act has been performed pursuant to tlie previous request of the party making the promise, then the promise is coupled to the con- sideration by the request, and is not a nuchnn pactum, (s) Thus where the plaintiff brought his action upon a promise made by the defendant to pay the plaintiff 201. in consideration that the plaintiff, at the instance of the defendant, had taken to wife the cousin of the defendant, it was held that the action was main- tainable, althoiigh the marriage was executed and past before the undertaking and promise were made, because the marriage en- sued at the request of the defendant, (t)^ So where the defend- ant, having feloniously slain one Patrick Mahume, " required the plaintiff to endeavor to obtain a pardon for him from the king, and the plaintiff journeyed and labored, at his own charges and by every means in his power, to effect the desired object, and the defendant, afterwards, and in consideration of the premises, promised to give the plaintiff 100^., it was held that, although the consideration was past and gone before the promise was made, yet, inasmuch as the consideration was moved by the previous suit or request of the party," the promise was binding and capable of sustaining an action, {u) But the thing done must, of course, have been advantageous to the defendant, or detrimental or troublesome or inconvenient to the plaintiff, and must be such an act or service as tlie law recognizes as a legal consideration for a promise, (a;) Thus, if a man pays a sum of money or buys goods for me with- out my knowledge or request, and afterwards I agree to the pay- ment or receive the goods, this subsequent assent is equivalent to (r) Jeremy v. Goochman, Cro. Eliz. («) Lampleigh v. Braithwait, Hob. 442; Doggett D. Vowell, Moore, 643; 105; 1 Sm. Lead. Cas. ; Sidman p.Wortli- ib. 220; Bacon's Abr. Assumpsit (D) ; ington, Cro. Eliz. 42; Harris' case, Dy.ei-, Eastwood V. Kenyon, 11 Ad. & E. 451. 272 a, n. 31. (s) 1 Wms. Saund. 264. (.r) Kaye v. Dutton, 13 L. J. C. P. {I) Dyer, 272 b ; 1 Wms. Saund. 264, 187; 7 M. & Gr. 816; Victors v. Davies, 264 a. 12 M. & W. 759. 22 6 ggg Appendix, Vol. III. CHAP. I.] THEIR NATURK AND CONSTITUENT I'ARTS. * 9 a previous request, in accordance with the ancient maxim of * the civil law, omnis ratihabitio retrotraliitur et man- [ * 9 ] dato priori cequiparatur. (y) A request, too, is frequently implied by law for the purpose of enabling a man to enforce an express promise founded upon a meritorious claim not amount- ing to a strict legal right. If a man, for example, clothes, feeds, and educates an infant during his infancy, and the latter, after he comes of age, makes an express promise to hi^ benefactor to pay him a certain sum of money in consideration of the benefits so rendered, the law will imply a previous request (2) on the part of the infant for the supply of the necessaries of life so furnished. When the defendant has received and retains the benefit of the consideration, the law will, under some circumstances, imply a request, or permit the jury to infer it, for the purpose of enfor- cing a meritorious claim, (a) Failure of Consideration. 1 — Although there be an apparent consideration for the promise, yet, if this consideration should turn out to be false, or to be a nullity, the contract has no legal force or effect, as in the instance put by Pothier. " If upon the false supposition that I owe you 1,000/., left you by the will of my father, which has been revoked by a codicil, whereof I am not apprised, I engage to give you a certain estate in discharge of that legacy, the contract is null ; and the falseness of the cause being discovered, you are not only without any right of action to compel me to deliver the estate, but, even if I have delivered it, I am entitled to reclaim it ; and my right of action by the Eoman law was called condictio sine causd, which is the subject of the title in the digest." (b) So, if the consideration prove to be a nullity, the promise founded upon it is void, as if the considera- tion be the forbearance of a suit when there is no cause of actionj or the relinquishment of a contract void in law, or a discharge from an arrest wrongfully and illegally made, or a promise to pay a debt which never had an existence in point of law. (c) 1 The subject of failure of consideration is treated again, as a ground of avoiding the contract, in Book V. ch. ii. § 1, p. * 1182. Xy) 1 Saund. 264, n. 1. art. 3, § 6 ; Gough v. Findon, 7 Exch. (4 Cooper V. Martin, 4 East, 81. 48. (a) Post, bk. 3. ch. 1. (c) Rosyer v. Langdale, Sty. 248 ; (b) Pothier on Obligations, p. 1, c. 1, Hammoni). EoU, March. 202 ; Atkinson 23 * 10 FORMATION OF CONTRACTS. [BOOK I. ■Written Promises without Consideration. — No superiority was given by the civil law to a written contract over a contract by word of mouth. " Por writing cannot change the nature of it, neither can _ writing amount to a cause or consideration for the promise, but is only made use of for proof." (d) Where the defendant signed a written undertaking to the following [ * 10 ] effect, "I hereby agree to * remain with ilrs. Lees for two years from the date hereof for the purpose of learn- ing the business of a dressmaker," &c., it was held that, as the engagement was all on one side, nothing being contracted to be done or performed by Mrs. Lees as a consideration or inducement for the defendant's remaining two years in her service, it was a nudum pactum, (e) So where a memorandum of agreement was made in the following terms, " I, William Bradley, of Sheffield, do agree that I will work for and with John Sykes, of Sheffield, manufacturer of powder-flasks, at such work as he shall order and direct, and no other person whatsoever, from this day hence- forth during and until the expiration of twelve months, and so on from twelve months' end to twelve months' end, until I shall give the said John Sykes twelve mouths' notice in writing that I shall quit his service," it was held that the agreement was a nudum pactum, and could not be enforced. (/)'' Moral Obligations.^ — The moral obligation whicti a parent is under to provide for his child, imposes on him no liability to pay 1 The American decisions on moral obligation viewed as a consideration for an express promise to do what the obligation requires, by no means warrant saying that a mere moral duty or obligation of conscience will suffice. Updike v. Titus, 13 N. J. Eq. 151 ; Geer v. Archer, 2 Barb. 420 ; Ehle v. Judson, 2i Wend. 97. A moral obligation is not deemed a legal consideration, from which alone the law will V. Settree, Willes, 482; Kings'. Hobbs, 1109; Young v. Timming.s, 1 Cr. & J. Yelv. 25; Randal «. Harvey, Godb. 358; 340 ; Hulse v. Hulse, 17 C. B. 725 ; 23 Courtenay v. Strong, 2 Ld. Raym. 1217; L- J. C. P. 177 ; but see Pilkington v. Cockrane v. AVillis, L. R. 1 Ch. 68; 35 Scott, 1.'. M. & W. t;:.7, and Whittle v. L. J. Ch. 36. Frankland, 2 B. & 8. 57. Probably at (d) Dig. lib. 2, tit. 14, 7 ; lib. 44, tit. the present day an agreement to employ 7, 61; lib. 22, tit. 4, 4; Cod. 4, tit. 30; and retain would be inferred from the Rann v. Hughes, 7 T. R. 350, 351 n. terms of the contract wlirre tliey were («) Lees V. Whitconib, 2 Moo. & P. not actually inconsistent with such a 86; 5 Bing. 34. promise. See Hartley u. Cunimings, (/) Svkes V. Dixon, 9 Ad. & E. 693; 17 L. J. C. P. 84; Reg. v. Welch, 2 El. 1 P. & D. 463 ; Bates v. Cort, 3 D. & & Bl. 355; 22 L. J. M. C. 145. R. 676 ; James v. Williams, 5 B. & Ad. 24 7 See Appendix, Vol. III. CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 10 the debts incurred by the child ; and he cannot be made liable in respect thereof, unless he has given the child authority to raise an indebtedness (Cook ti. Bradley, 7 Conn. 57, 18 Am. Dec. 79; Musser i;. Ferguson, 55 Pa. St. 475), though the rule has sometimes been almost so broadly stited (see Montgomery i'. Lampton, 3 Met. (Ky.) 519 ; Mills v. Wyman, 3 Pick. 207 ; McMorris v. Herndon, 21 Am. Dec. 515) ; nor is it a suiEcient consideration to support an express promise, except in those cases where there has been an ante- cedent good or valuable consideration (Mills v. Wyman, 3 Pick. 207 ; Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79 ; Loomis v. Newhall, 15 Pick, 159 ; Hawley !). Farrar, 1 Vt. 420 ; Nash v. Russell, 5 Barb. 556 ; but see Clark v. Herring, 5 Binn. 33 ; Glass v. Beach, 5 Vt. 172 ; Commissioners v. Perry, 5 Ohio, 56 ; Tur- ner V. Patridge, 3 Pa. 172 ; Barlow v. Smith, 4 Vt. 139). A promise to pay a. demand where there is no legal obligation, is not enforceable merely because the promisor supposed himself liable, though it may be if his liability were doubtful. Logan V. Mathews, 6 Pa. St. 417. But by reviving some precedent consideration, such as might, by means of an implied promise, and if it had not been suspended by some positive law, have been used either as a cause of action or a defence, a moral obligation may give the necessary support to a new promise (Ellicott v. Turner, 4 Md. 476 ; Geer v. Archer, 2 Barb. 420) ; or, as the doctrine has .been expounded in Rhode Island, a mere moral obligation will not support a promise, when, however, the precedent original consideration is sufficient to sustain the origi- nal contract, but the right of action is suspended or barred by some positive mle of statutory or common law, the debtor may, by a subsequent promise, waive the exemption which the law, indirectly for his benefit, but mainly from reasons of sound policy, has interposed (Shepard v. Rhodes, 7 R. I. 470 ; S. P. Turner v. Chrisman, 20 Ohio, 332) ; and the fact that he erroneously supposed himself legally bound when he made the new promise, will not entitle him to equitable relief against it if his moral obligation is clear (Card well v. Strother, 12 Am. Dec. 326). Thus the decisions are numerous, and have rendered the rule elementary, that a new promise to pay a debt discharged in bankruptcy or insolvency, or barred by the statute of limitations or other operation of law not affecting the creditor's right, does not lack consideration. Lonsdale v. Brown, i Wash. 86 ; Feeuy v. Daly, 8 Cal. 84; Jamison v. Ludlow, 13 La. Ann. 492 ; Katz v. Moore, 13 Md. 566 ; Erwin V. Saunders, 1 Cow. 249 ; Scouton v. Eislord, 7 Johns. 36 ; Shippey v. Hen- derson, 14 Johns. 78 ; Turner v. Chrisman, 20 Ohio, 332 ; McKelvey ■;;. Tate, 3 Rich. 339; Womack v. Womack, 8 Tex. 397; Earnest v. Parke, 4 Rawle, 452, 7 Am. Dec. 280, and note, ib. 287. And in general, it is where the debtor's release from his debt has been given by positive law, and not when the creditor has voluntarily discharged it, that a moral obligation continues which can support his after promise to pay. Warren v. Whitney, 24 Me. 561; Valentines. Foster, 1 Met. (Mass.) 520; Hale v. Rice, 124 Mass. 292; Wright v. Clark, 34 Miss. 116 ; Shep- ard V. Rhodes, 7 R. I. 470 ; see, however, Stafford v. Bacon, 25 Wend. 384 ; Willing V. Peters, 12 Serg. & R. 177. Also it has been held that an assignment for value of a thing in action creates an equitable obligation on the debtor to make payment to the assignee, which, viewed as a consideration, may suppoi't a promise iDy him to the assignee. Moarii. Wright, 1 Vt. 57 ; Crocker v. Whitney, 10 Mass. 316 ; Mowry v. Tudd, 12 Mass. 281 ; Barney v. Coffin, 3 Pick. 115 ; Morse t). Bel- lows, 7 N. H. 549; Currier v. Hodgdon, 3 N. H. 82; Allstan v. Contee, 4 Har. & J. 351 ; Edson v. Fuller, 22 K. H. (2 Fost.) 183 ; Dickerson v. Derrickson, 39 111. 576 ; Trafton v. Rogers, 13 Me. 315 ; Warren v. Wheeler, 21 Me. 484; but see Woodbura v. Renshaw, 32 Mo. 197. For cases in which the prominent question has been whether the particular 25 * 11 FORMATION OF CONTRACTS. [BOOK I. incur tliem, or has contracted to jDay them, (cf) or the child has become chargeable upon the parish, and the parish authorities sue for subsistence money in the mode provided by the poor laws. Very slight evidence has, however, been held sufficient, under certain circumstances, to warrant a jury in inferring the existence of an authority from the parent, so as to fasten a just liability upon the latter. If a tailor furnishes clothes to a boy at school, and the father sees the clothes on the boy's return home, and makes no objection to tlie tailor, this is sufficient to warrant a jury in finding that there was an implied authority from the father to the tailor to furnish the son with clothes. (A) The only duties of the nature of mere moral obligations that will support an express promise are those which could be enforced at common law but for the intervention of some positive rule of law or statutory enactment, which, with a view to the general benefit, exempts the party in that particular instance [ *11 ] from liability. Such are *the duties and obligations arising out of the debts and contracts of persons under age, and antiquated legal claims and demands barred by the Statute of Limitations, where the remedy is taken away by a positive rule of law or by express legislative enactment, and the payment of the debt or the performance of the engagement circumstances of the former debt or transaction were such as to raise a moral obli- gation sufficient to sustain a new promise, see Vance v. Wells, 8 Ala. 399 ; Tur- lington V. Slaughter, 54 Ala. 195; Kilbourn v. Bradley, 3 Day, 376, 3 Am. Dec. 273; Cook I'. Biudlcy, 7 Conn. 57, 18 Am. Dec. 79 ; JIcElven v. Sloan, 56 Ga. 208 ; Katz V. Moessinger, 7 111. App. 536 ; Mills v. Wynian, 3 Pick. 207 ; Nixon v. Vanhise, 2 South, 491, 8 Am. Dec. 618; Bentley d. Morse, 14 Johns. 468; Stebbinsj). Craw- ford County, 92 Pa. St. 289 ; Si;ott v. Carruth, 9 Yerg. 418 ; Blodget v. Skinner, 15 Vt. 716 ; Farmers v. Flint, 17 Vt. 508 ; Pritchard v. Howell, 1 Wis. 131. A previous legal duty prevents a promise to do the thing from being a sufficient consideration for a counter-promise, though made to induce performance. But previou.s moral obligation, however strong, does not have this effect ; thus, if one not legally bound so to do gives information to a party to a suit as to who are important witnesses for him, and what they will testify, his doing so is a suf- ficient consideration to support the party's promise made to induce him to do it. Cobb V. Cowdery, 40 Vt. 25. (g) Mortimore v. Wright, 6 M. & W. C. B. 452 ; Ruttinger v. Temple, 33 L. 482; Seaborne v. Maddy, 9 C. & P. 497; J. Q. B. 1. Urmston v. Newcomen, 4 Ad. & E. 899; (h) Law v. Wilkin, 6 Ad. & E. 718 ; 1 6 N. & M. 454; Shelton v. Springett, 11 N. & P. 697 ; Baker v. Keen, 2 Stark. 501 ; Blackburn v. Mackey, 1 C. & P 1. 26 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 11 remains a voluntary duty, binding only in foro conscienticB. In these instances, and upon such duties and obligations so ex- empted, an express promise operates to revive the liability and take away the exemption. It revives a precedent good consider- ation ; but it can give no original right of action if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statutory provision, (i) Thus, a bill of exchange given after the repeal of the usury laws in renewal of a bill given before such repeal to secure the repayment of usurious interest, is valid, (k) Forbearance of Legal or Equitable Rights 1 forms a good COn- ' sideration for au undertaking, and will make it binding, (t) and 1 A promise to forbear asserting oi' prosecuting a demand for a reasonatle time, in general or specitic terms or indefinitely, is a sufficient consideration for a pro- mise to pay (Lowe v. Weatherly, i Dev. & B. 219 ; Ford v. Eehman, Wright, 434 ; Nicholson v. May, ib. 660 ; Silvis v. Ely, 3 Watts & S. 420) ; and the promise will not be invalidated by showing merely that the demand could not have been enforced, provided the promisor believed upon reasonable gi'ounds that it could be. Hargroves v. Cooke, 15 Ga. 321 ; Gilman v. Kibled, 5 Humph. 19. But a promise to forbear " for a short time " (Lonsdale v. Brown, 4 Wash. 148), or " to wait a while " (Sidwell v. Evans, 1 Pa. 383, 21 Am. Dec. 387), is not suf- ficient, for the plaintiff might have brought his suit in an hour after the promise was made. If the demand is clearly illegal, void, or groundless, a promise made to induce forbearance is without consideration. Slack v. Moss, Dudley, 161 ; Schnell V. Nell, 17 Ind. 24; Palfrey v. Portland, &c R. R. Co., 4 Allen, 55; Sharpen;. Rogers, 12 Minn. 174 ; Sidwell v. Evans, 21 Am. Dec. 387 ; and see to the effect that unless it was sustainable either at law or in equity the promise is voidable, 0. & 0. E. R. Co. V. Potter, 5 Oreg. 228. Thus au extension of time for the jiay- ment of a debt or performance of an agreement may be a sufficient consideration to support a promise made to induce the extension. Underwood v. Hossack, 38 111. 208 ; Boyd v. Freize, 5 Gray, 553 ; Ford v. Eehman, Wright, 434; Bank of Musk- ingum 0. Carpenter, ib. 729 ; Nicholson v. May, ib. 660 ; Silvis v. Ely, 3 Watts & S. 420 ; Clark v. Russell, 3 Watts, 213 ; Sidwell v. Evans, 1 Pa. 383 ; Allen v. Morgan, 5 Humph. 624 ; Templeton v. Bascom, 33 Vt. 132 ; Hill v. Smith, 34 Vt. 535 ; Tuttle v. Bigelow, 1 Root, 108, 1 Am. Deo. 35 ; Hamaker v. Eberley, 2 Binn. 506, 4 Am. Dec. 477 ; Noblet ■». Green, 2 Dev. L. 517, 21 Am. Dec. 347. So a waiver of a legal right given at another's request is a sufficient consideration for a promise by him. Sykes v. Lafferry, 27 Ark. 407 ; Condly v. Devoe, 37 Conn. 570 ; Boyd v. Frieze, 5 Gray, 553 ; Eippey v. Friede, 26 JIo. 523 ; Sanford v. Huxford, 32 Mich. 313. The surrender of his claim by a creditor of the estate is a sufficient consideration for a promise by a distributee to pay it. Calhoun v. (i) Wennall v. Adney, 3 B. & P. 249, (I) Alliance Bank v. Broom, 2 Drew. n. a. ; Eastwood v. Kenyon, 11 Ad. & E. & Sm. 289 ; 34 L. J. Ch. 256 ; Bracewell 447. v. Williams, L. E. 2 C. P. 196. (k) Flight V. Eeed, 1 H. & C. 703 ; 32 L. J. Exch. 265. 27 *11 FOEMATION OF CONTRACTS. [BOOK I. this even though no actual benefit accrue to the party under- taking. If the plaintiff', for example, at the request of the de- Calhoun, 37 Miss. 668. Even an adjournment of a suit in a justice's court has been held a sufficient consideration for an agreement. Stewart v. M'Guin, 1 Cow. 99 ; Richardson v. Brown, ib. 255. For an inquiry whether » promise to forbear suing a bond-Jlde demand is any the less a consideration because the demand is groundless, see 16 Am. L. Keg. N. s. 152, note. This principle has been applied ; To promises to p.ay money in consideration of forbearing to prosecute the promisor in bastardy proceedings (Merritt v. Hem- ming, 42 Ala. 234 ; Ashburne v. Gibson, 9 Port. 549 ; Coleman v. Frum, 4 111. 378 ; Abshire v. Mather, 27 Ind. 381 ; Thompson d. Nelson, 28 Ind. 431 ; Clarke V. McFarland, 5 Dana, 45) ; To a guaranty of a note given by a third person in consideration of holder's engagement to forbear for a definite term to sue the maker (Sage v. 'Wilcox, 6 Conn. 81) ; To a promise given iu consideration of an agreement to postpone for a definite term a sale in foreclosure (Hancock v. Hodg- son, 4 111. 329) ; To a note given in pursuance of an agreement to forbear con- testing a will, even though when such note was made tlie time allowed by law for contesting had expired (Hindert v. Schneider, 4 111. App. 203) ; To a promise by a stranger to pay the amount due on an execution, made in consideration of a pro- mise to delay levy and sale (Kussell v. Babcock, 14 Me. 138) ; To promise by a third person that he would pay a debt on which suit was pending or threatened, if creditor would discontinue, or suspend, or forbear commencing suit (Castner v. Slater, 50 Me. 212 ; Stewart v. McGuin, 1 Cow. 99 ; Watson v. Eandall, 20 Wend. 201 ; Mechanics', &c. Bank v. Wixon, 42 N. Y. 438 ; Rood v. Jones, 1 Dougl. (Midi.), 188 ; and see Collins v. Barnes, 83 Pa. St. 15); and it is not necessary that the creditor should discharge the debt, relinquish collaterals, or the like (Brownell v. Harsh, 29 Ohio St. 631) ; To a guaranty of rent given in con- sideration of landlord's forbearing to eject tenant (\'inal v. Richardson, 13 Allen, 521) ; To a promise not to move to set aside a judgment for fraud, given to induce a stipulation to postpone execution upon it (Read v. French, 28 N. Y. 285); To an agreement to divide property in dispute, made to induce withdrawal of legal proceedings for determining the title (Douner -w. Church, 44 N. Y. 647); To a promise by a third person to pay an infant's dul)t if creditor would not sue, where the infant on attaining his majority ratified the contiact (Runs v. Young, 34 Pa. St. 60) ; To a second mortgagor's promise to pay a first mortgage if the first mortgagee will not foreclose (Colgin v. Henley, 6 Leigh, 85) ; To an heir's or executor's promise to pay the debt of his ancestor or testator if the creditor would not sue (Elting v. Vanderlyn, 4 Johns. 237 ; Nohlet v. Green, 2 Dev. L. 517, 21" Am. Dec. 347). It is said that there must be an engagement to forbear ; mere actual forbear- ance, without a promise to give it, altliough induced by a third person's promise to pay the debt, is not a consideration. Manter v. Churchill, 127 Mass. 31. There must be an engagement to forbear sufficiently definite to give the debtor some new right. McCann v. Lewis, 9 Cal. 246. A promise in gener.al words to forbear without indicating any term has been treated as a promise of per- petual forbearance. Sidwcll v. Evans, 21 Am. Dec. 387 ; H.amaker v. Eber- ley, 4 Am. Dec. 477 ; Clark v. Russell, 27 Am. Dec. 348 ; and see Freeman's note, ib. 353. But the engagement need not, generally spi'aking, have been expressed to be for a definite term ; that the creditor promised to " wait," to "give further time," or the like, if he actually did grant substantial extension, has been pronounced sufficient. See King i-. Upton, 4 Me. 387 ; Elting v. Vanderlyn, 4 28 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 11 fendant, forbears to institute legal proceedings, or discontinues legal proceedings already commenced, against a third' party for the enforcement of a lawful claim or demand, for any convenient or reasonable period, or suspends or withdraws an execution or a distress against the goods or the person of such third party, the Johns. 237 ; Allen v. Pryor, 3 A. K. Marsh. 305 ; Rood v. Jones, 1 Doug. (Mich.) 188 ; Downing v. Funk, 5 Rawle, 69 ; Giles v. Ackles, 9 Pa. St. 147 ; McKelyy V. Wilson, ib. 183 ; Knapp v. Mills, ^0 Tex. 123. And the forbearance must haye been induced by the promise ; future forbearance by the depositors of a banker can form no consideration for an absolute agreement by guarantors to pay the depositors, made without reference to such forbearance. Steadman v. Guthrie, i Met. (Ky). 147; compare Wager «. Chew, 15 Pa. St. 323; Hamaker v. Eberley, 2 Binn. 506, i Am. Dec. 477. Compromises of disputed claims rest upon principles very similar to those gov- erning agi-eements to forbear. The rule is elementary that a bald promise to take less than is due in full satisfaction of an unquestioned debt cannot be enforced, for it lacks consideration. See U. S. Dig. tit. Debtor and Creditor, III. ib. N. s. Debtor and Creditor ; also Accord and Satisfaction. Stone v. Lewman, 28 Ind. 97 ; Stovall v. Hairstone, 55 Ga. 9 ; Lino v. Nelson, 38 N. J. L. 358 ; Bryan v. Brazil, 52 Iowa, 350 ; Warren v. Hodge, 121 Mass. 106 ; Pierce v. New Orleans Building Co., 9 La. 397, 29 Am. Dec. 448, and note, ib. 452. But if the rights of a claimant are doubtful and are honestly contested, an agreement on the part of the debtor to pay something and on claimant's part to accept that in full, is valid, .so far, at least, as the element of consideration is concerned. Allen v. Prater, 30 Ala. 458 ; Motley v. Motley, 45 Ala. 555 ; McKinley v. Watkins, 13 111. 140 ; Field V. Weir, 28 Miss. 56 ; Grans v. Hunter, 28 N. Y. 389 ; Farmers' Bank v. Blair, 44 Barb. 641 ; Eice v. Bixler, 1 Watts & S. 445 ; Mayo v, Gardner, 4 Jones L. 350 ; Mills v. Lee, 6 T. B. Mon. 91 ; Heminy v. Ramsey, 46 Pa. St. 252 ; Cav- oder 1). McKelvey, Add. 56 ; Smith v. Smith, 36 Ga. 184 ; Hoge v. Hoge, 1 Watts, 216, 217 ; Zane v. Zane, 6 Munf. 406 ; Taylor v. Patrick, 1 Bibb, 168 ; Fisher v. May, 2 Bibb, 448 ; Moore v. Fitzwater, 2 Rand. 442 ; Kennedy v. Davis,' 2 Bibb, 343 ; Burnham v. Dunn, 35 N. H. 556 ; Long v. Shackleford, 25 Miss. 559 ; Barn- awell V. Threadgill, 3 Jones Eq. 50; Moore v. Adams, 8 Ohio, 372. An agree- ment to settle a family controversy cannot be considered a nude pact, but may be enforced in equity. Watkins v. Watkins, 24 Ga. 402 ; Smith v. Smith, 36 Ga. 184; Bailey v. Wilson, 1 Dev. & B. Eq. 182. Thus when a creditor and his debtor entertain doubts of the validity of the debt, and make an honest compromise of it, a note given by the debtor for the compromise sum agreed on cannot be con- tested as lacking consideration. Cuny v. Davis, 44 Ala. 281; compare Pitkin V. Noyes, 48 N. H. 294. Settlement of a disputed claim for damages is a suffi- cient consideration for a note given for the compromise amount. Scott v. Warner, 2 Lans. 49. So a promise to pay a certain sum as the damages which promisee has sustained through negligence of employees of the promisor, made and accepted as a compromise of his claim for damages, is founded on a sufficient consideration, even though the promisoi-'s liability be doubtful. Hund v. Geier, 72 111. 393; Honeyman v. Jarvis, 79 111. 318; Husband v. Epling, 81 111. 172. Upon the other hand, a promise to make a payment to compromise a claim which is utterly without ground or foundation, has been pronounced insufficient to sustain an action. Jarvis v. Sutton, 3 Ind. 289. A compromise made under a mistake of facts is not binding. People v. Cooper, 10 Bradw. 384. 29 * 12 FORMATION OF CONTRACTS. [BOOK I. suspension or withdrawal of such execution or distress, or the for- bearance of further proceedings, forms a sufficient consideration for a promise by the defendant to pay money to the plaintiff, or to satisfy the full amount of his claim, (m) The abandonment and discontinuance of an action brought to enforce a doubtful right or claim are a sufiicient consideration for a promise ; (m) and so is the compromise of a disputed claim made bona fide, even although it ultimately appears that the claim was wholly unfounded ; (o) and, if there be an admitted debt due from one person to another, but disputes and doubts exist as to the exact amount due, the compromise and settlement of the dis- [ * 12 ] putes, and the abandonment of the claim to * its full extent, form a sufficient consideration for a promise to pay a smaller sum than the amount claimed ; (^) and, in the case of all unliquidated claims and demands, where the precise amount due has not been fixed and reduced to a certainty by the agreement of the parties, the payment or satisfaction of part of the demand is a good consideration for the discharge of the residue, {q) although litigation lias not been actually com- menced. (?•) But unless the debt is unliquidated, or some doubt exists as to the exact amount due, a promise by the creditor to discharge the residue on receiving payment of part is nudum pactum, and totally inoperative, {») because the debtor is under a legal obligation to pay the whole demand. As a husband has the power of immediately enforcing in a joint action a claim of the wife which accrued to her before the marriage, forbearance by him from so doing is a sufiicient consideration to supjiort a promise made to him alone, (t) But the mere putting an end (m) Smith v. Algar, 1 B. & Ad. 60.3 ; (o) Callissher v. Bischoffsheim, L. E. 5 1 Roll. Abr. 24, pi. 33 ; Morton D. Burn, Q. B. 4i9 ; 39 L. J. Q. B. 181. See, 7 Ad. & E. 19 ; Pilkington r. Green, however, E.r parte Banner, 17 Ch. D. 2 B. & P. 151 ; Sugars v. Brinkworth, 480, jjer Brett, L. J. 4 Caniph. 46. (p) Edwards v. Baugh, 11 M. k ^Y. (n) Longiidge v. Dorville, 5 B. & Aid. 641 ; 12 L. J. Exch. 47. 117 ; Stracey v. Bank of England, 4 M. (7) "Wilkinson 1'. Byers, 1 Ad. & E. & P. 639 ; Llewellyn v. Llewellyn, 15 L. 113 ; Matters v. Smith, 2 B. & Ad. 889. J. Q. B. 4. But not the abandonment (c) Cook v. "Wright, 1 B. & S. 559 ; of a suit, when the plaintiff knows and 30 L. J. Q. B. 321. has admitted that he had no cause of (s) Cumber v. "\7ane, 1 Str. 425. ai.'tion at all. "Wade v. Simeon, 15 L. J. (t) Rumsey v. George, 1 51. & S. C. P. 114. 180. 30 CHAP. I.J TIIKIK NATURE AND CONSTITUENT PARTS. * 12 to " certain disputes and controversies," or ceasing to make com- plaints, or to bore or annoy a man, is an insufficient consideration or foundation in law for an express promise, (u) Adequacy of Consideration. ^ — From the preceding remarks it will be perceived that the consideration for a simple contract or promise need not be adequate in point of value. " If there be miy consideration, the court will not weigh the extent of it." (a) It has no means of scrutinizing the varied hidden motives and reasons that may have influenced the parties, and induced them to enter into the contract, nor can it determine upon the pru- dence or propriety of the transaction. If parties choose to enter into unwise and improvident bargains, they must abide by the consequences of their own rashness and folly ; they have con- tracted for themselves, and the court cannot contract for them (y). 1 In determining adequacy of a consideration, the extent of benefit derivable from it is not considered ; a value, however small or nominal, if given or stipu- lated for in good faith, is, in the absence of fraud, sufficient to support an action on a parol contract. Lawrence v. M'Calmont, 2 How. 426 ; Follett v. Rose, 3 McLean, 332 ; Woodruff t'. McDonald, 33 Ark. 97 ; Brown v. Budd, 2 Ind. 442 ; Stewart v. State, 2 Har. & G. 114 ; Whitefield v. M'Leod, 2 Bay, 380 ; Knobb v. Lindsay, 5 Ohio, 468 ; see Brachau v. Griffin, 3 Call, 433 ; George v. Richardson, Gilm. 230 ; McKinney v. Pinckard, 2 Leigh, 149 ; Goree v. WUson, 1 Bailey, 597; Meacham v. M'Kie, 1 Hill (S. C), 374 ; Hubbard v. Coolidge, 1 Met. (Mass.) 84; Hind V. Holdship, 2 Watts, 104, 26 Am. Dec. 107 ; Woodfolk v. Blount, 3 Hayw. (Tenn.) 147, 9 Am. Dec. 736 ; Troy Academy v. Nelson, 24 Vt. 189 ; Kidder v. Cliamberlain, 41 Vt. 62 ; Randle v. Harris, 6 Yerg. 508. It is not necessary that the consideration should be equivalent in pecuniary value for the obligation in- curred. Thus when a contract is founded on a transfer of articles of property, the court will not in general, on the question of consideration, inquire into actual worth, but will leave the parties to such estimates as they formed when contract- ing. Worth V. Case, 42 N-. Y. 362. A valid patent, or any interest or license under one, is deemed, without regard to its pecuniary value or degree of utility, a good consideration for an engagement to buy and pay for it. Nash v. Lull, 102 Mass. 60 ; How v. Richard, ib. 64, note. But such doctrine, it is said, does not apply to a mere exchange of sums of money, whose value is exactly fixed, but to the exchange of so]nething of indeterminate value in itself, for money, or for some other thing of indeterminate value. Thus a consideration of one cent will not sup- port a promise to pay $600. Schnell v. Nell, 17 Ind. 29. And there is a line beyond which the courts will relieve against contracts as unconscionable, or treat the gross inequality of considerations as a badge of fraud. (a) Edwards ■o. Baugh, 11 M. & W. Starlyn v. Albany, Cro. Eliz. 67 ; 2 H. 641 ; Kaye v. Dutton, 7 M. & Gr. 807 ; Bl. 312 ; Pinnell's Case, 5 Co. 117 a, 8 Sc. N. R. 502 ; White v. Bluett, 23 117 b. L. J. Exch. 36. (j/) But the consideration must be of (x) Ellenborough, C. J., 16 East, 372; some value. Smiths. Smith, 3 Leon. Hitchcock V. Coker, 6 Ad. & E. 457 ; 88 ; 1 Rol. Abr. 23. See as to the rule o 1 * 13 FORMATIOX OF CONTRACTS. [BOOK I. In these cases there is an offer which is intended to be ac- cepted by the other party doing the act wliich forms the con- sideration ; and when the defendant has had the benefit of the consideration for which he bargained, it is no answer to an action brought against him to say that the plaintiff was not [ * 13 ] bound by the contract to do * the act. (2) Thus in the case of guarantees : " Suppose I say, if you will fur- nish goods to a third person, I will guarantee the payment ; there, you are not bound to furnish them ; yet, if you do furnish them in pursuance of the contract, you may sue me upon my guar- antee." (ft) So if a person says, " In case you choose to empjloy this man as your agent for a week, I will be responsible for all such sums as he shall receive during that time, and neglect to pay over to you," the party indemnified is not therefore bound to employ the person designated by the guarantee ; but if he does employ him, then the guarantee attaches, and becomes binding on the party who gave it. (6) So where a railway com- pany advertised for tenders for the supply of stores for a period of twelve months, and the defendant sent in a tender to supply the stores " in such quantities as the company's storekeeper might order from time to time," and the company accepted the tender, it was held that the defendant was bound to supply goods ordered before any notice had been given by the defendant to the com- pany of withdrawal of the tender, (c) But it does not follow that, because a householder applies to a gas company for a sup- ply of gas, and is promised a supply, and fits up his premises with stoves and fittings for the purpose of having them warmed and liglited with gas, there is any contract on the part of the company to supply, or on the part of the householder to consume and pay for, gas any longer than either of them may think fit. The householder is not bound to take gas, nor the company to supply it, for a single minute longer than each is minded so to in equity, Towuend v. Tokr-r, L. R. 1 Ch. Traite lies Obligations, part 1, ch. 1, art. 446, 458 ; 35 L. J. Ch. 608, 614 ; Cheale 3, s. 7. V. Kenward, 3 De G. & J. 27 ; 27 L. J. (a) Morton v. Burn, 7 Ad. & E. 23. Ch. 784. (6) Kennaway v. Treleavan, 5 M. & (,;) Tindal, C. J., 6 Sc. N". R. io6 ; W. 501 ; Oflford v. Davies, 12 C. R. N. s. Jones V. Robinson, 1 Exch. 454 ; 17 L. J. 748 ; 31 L. J. C. P. 319. Exch. 36 ; Mills v. Blackhall, 11 Q. B. (c) Great Northern Ry. Co. v. Wit- 358 ; 17 L. J. Q. B. 31 ; 12 Jur. 93 ; ham, L. R. 9 C. P. 16. 32 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 14 do. (d) So an advertisement of a sale by auction does not amount to a contract with any one who may act upon it that all the things advertised will actually be put up for auction, and that such person will have an opportunity of bidding for them. It is a mere declaration of intention, and not an oft'er; and persons who attend the sale cannot maintain an action against the auctioneer if the articles advertised are not put up for sale, (c) Mutual Promises. ' — Bilateral contracts, also, being founded upon mutual promises, are perfected and made binding by the bare consent of the parties, the promise or undertaking of the one party to do one thing being the consideration for the promise of the other to do another. Such are all contracts of sale where the promise or undertaking of the one party to sell forms the consideration for the promise of * the other to [ * 14 ] buy, and where the " bargain is struck " and the con- 1 For cases explaining or illustrating the doctrine that mntual promises may be a consideration for each other, and form a valid contract befoi'e either has been performed, see Phillips v. Preston, 5 How. 278 ; Funk v. Hough, 29 111. 145 ; Downey v. Hiuchman, 25 Ind. 453 ; Leach v. Keach, 7 Iowa, 232 ; Crawford v. Paine, 19 Iowa, 172 ; Boies u. Vincent, 24 Iowa, 387 : Nunnally v. White, 3 Met. (Ky.) 584 ; Pike v. Thomas, 4 Bibb, 486, 7 Am. Dec. 741 ; Babcock «. Wilson, 17 Me. 372 ; Appleton v. Chase, 19 Me. 74 ; Wightraan v. Kellogg, 15 Mass. 1 ; Gridley v. Tucker, 1 Freem. Ch. 209 ; Ott v. Garland, 7 ilo. 28 ; George V. Harris, 4 N. H. 533 ; Congregational Society v. Perry, 6 N. H. 164 ; Living- ston V. Rogers, 1 Cai. 583 ; Briggs v. Tillotson, 8 Johns. 304 ; Keep v. Goodrich, 12 Johns. 397 ; Tucker v. Woods, ib. 190, 7 Am. Dec. 305 ; Gould v. Banks, 8 Wend. 562, 24 Am. Deo. 90 ; White v. Demilt, 2 Hall, 405 ; Jarvis v. Peck, 1 Hoffm, 479 ; Briggs o. Sizer, 30 N. Y. 647 ; Coleman v. Eyre, 45 N. Y. 38 ; Poughkeepsie, &c. Plank Road Co. i). Griffin, 21 Barb. 454 ; Farringtonv. BuUard, 40 Barb. 612 ; Abrams v. Suttles, Busb. L. 99 ; Whitehead v. Potter, 4 Ired. L. 257 ; Forney 1). Shipp, 4 Jones L. 527 ; Commissioners v. Perry, 5 Ohio, 56 ; Nott V. Johnson, 7 Ohio St. 270 ; Aldrich v. Lyman, 6 R. I. 98; Rice-u. Sims, 8 Rich. 416 ; Howe v. O'iMalley, 1 Murphey, 287, 3 Am. Dec. 693 ; Cherry v. Smith, 3 Humph. 19 ; Seward v. Mitchell, 1 Coldw. 87 ; James v. Fulcrod, 5 Tex. 512 ; Missisquoi Bank v. Sabin, 48 Vt. 239. On the necessity of mutuality and what mutuality is sufficient, see Chambliss v. Smith, 30 Ala. 366 ; Smith v. Morse, 20 La. Ann. 220 ; Getchell v. Jewett, 4 Me. 350 ; Nutting v. McCutcheon, 5 Minn. 382 ; Utica, &c. R. R. Co. v. Brinckerhoff, 21 Wend. 139, 34 Am. Dec. 220 ; Day- ton, &a. Turnp. Co. v. Coy, 13 Ohio St. 84 ; Hill v. Roderick, 4 Watts & S. 221 ; Grove v. Hodges, 55 Pa. St. 504 ; Cherry v. Smith, 3 Humph. 19. See also ante, p. * 2, American note 2. (d) Haddesdon Gas Co. i;. Hazelwood, (e) Harris v. Nickerson, L. E. 8 Q. B. 6 C. B, N. s., 249; 28 L. J. C. P. 268. 286. VOL. I. 3 33 * 14 FORMATION OF CONTEACTS. [BOOK I. tract concluded by the mere assent of the parties. (J) Such, also, are all agreements by simple contract between creditors for compounding their debts and releasing their debtor from their several claims, on receiving a part only of the amount due to them, the agreement by one to compound his debt and release the debtor being the consideration for the agreement of the other to do the same ; {g) also all contracts of marriage, where the promise of the one party to marry is the consideration for the promise of the other party ; also all contracts or agTcements to enter into partnership, or to make exchanges of lands and chattels, or to refer disputes to arbitration ; (A) and whenever several parties simultaneously agree for the jjerformance of several duties or services to or for the benefit of each other, there is a binding contract, and an action will lie. (i) By-laws for the government of corporations are binding upon all persons who consent to be- come members of the corporation, as being in the nature of a contract founded upon mutual promises, (k) A contract founded upon mutual promises between persons of full age must be obli- gatory upon both parties, {l) so that each may have an action upon it, or neither will be bound. A written agreement, there- fore, to submit disputes and differences to arbitration must be signed by all parties before any one can be made liable upon it, as the obligation by all to obey the award of the arbitrator is the consideration to each for his entering into the contract ; and, before a plaintiff can succeed in an action upon such a contract, he must show that he had himself engaged to be bound by the award, {in) The mutuality of obligation is the very essence of all contracts founded upon mutual promises. " Hence it follows," observes Pothier, " that nothing can be more contradictory to such an obligation than an entire liberty in either of the parties (/) 2 Bl. Com. 447 ; Noy'.s J[axims, (I) Tobacco Pipe, &c. Co. v. Loder, 16 u. 42 ; Just. Inst. lib. iii., tit. 23. Q. B. 765 ; 20 L. J. Q. B. 414. (ff) BoothbyD.Sowdeii, SCampb. 175; (/) Nichols •«. Eaynbred, Hob. 88; Wood V. Roberts, 2 Stark. 417. Sutcliffe v. Brooks, 14 M. & W. 855.. (h) Gower v. Capper, Cro. Eliz. 543 ; (m) Kingston d. Phelps, Peake, K.299; ib. 703, 888 ; Mansfield r. Stephen, Biddle v. Dowse, 6 B. & C. 255. An Comb. 256; Hebden v. Eutter, 1 Sid. action will lie on a judge's order to refer 180 ; Holders. Diekeson, 1 Freem. 95 ; made by consent, the consent being evi- GibbonsD. Prewd, Hardr. 102. dence of an agreement to perform the (i) Tipper v. BickneU, 4 Sc. 462 ; 3 award. Licvcsley t). Gilmore, L. K. 1 C. Bing. N. C. 710. P. 670 ; 35 L. J. C. P. 351. 34 CHAP. l.J THEIR NATURE AND CONSTITUENT PARTS. * 15 making the promise to perform it or not, as he may please. An agreement giving such a liberty would be absolutely void for want of obligation," (n) i. e., so long as the contract remained wholly executory, and nothing had been done under it. Assent of the Parties.^ — In order to make a contract, there * must be an offer or proposal made by the one [ * 15 ] ^ Mutual assent — a real meeting of minds upon the same subject-matter and purpose — is of the essence of express simple contriicts : this, rathar than the writing or language in which it is expressed, constitutes the obligation ; and unless the circumstances show or warrant assuming that it existed, the supposed contract will not be enforced. A promise unaccepted, an offer to which assent was not made, either actually or presumptively, creates no obligation. (See Elia- son V. Henshaw, 4 Wheat. 225 ; Carr v. Duval, 14 Pet. 77 ; Cham bliss v. Smith, 30 Ala. 36fi ; McKinley v. Watlans, 13 111. 140 ; Esmay v. Gorton, 18 111. 483 ; Smith V. Weaver, 90 111. 392 ; Demoss », Noble, 6 Iowa, 530 ; Moxlcy v. Moxley, 2 Mete. (Ky.) 309 ; Erwin v. Bank of Kentucky, 5 La. Ann. 1 ; Belfast, &c. R. R. Co. V. Unity, 62 Me. 148 ; Harlow r. Curtis, 121 Mass. 320 ; Ahearn v. Ayres, 38 Mich. 692 ; Weiden ». Woodruff, ib. 130 ; Brown v. Rice, 29 Mo. 322; Bruce v. Pearson, 3 Johns. 534 ; Tuttle v. Love, 7 Johns. 470 ; Tucker v. Woods, 12 Johns. 190 ; Shupe v. Galbraith, 32 Pa. St. 10. This piinciple is even broader than the law of conti'acts ; for it is said that if the assent of the will of the maker of any instrument is wanting, the result is the same as if the act had been done under duress or during insanity. Gibbs v. Linabury, 22 Mich. 479.) Thus a promissory note needs payee's consent to give it legal incejition. Baird . Wil- liams, 19 Pick. 381. A notice printed at the liead of each page of a register of arrivals at a hotel, stating that money and valuables must be placed in the safe, or the proprietors will not be responsible for loss, will not operate a.s a contract of the persons who sign their names in the register, without proof that their atten- tion was called to it, and that they signed their names with intent to be bound by it. Raniley v. Leland, 6.Robt. 358. Though a contract appear formal and com- plete, yet if it were understood by the parties as a jest, or as loose, inconclusive conversation, it will not bind (Armstrong r. McGhee, Add. 261 ; Thruston u. Thornton, 1 Cush. 89) ; and this has been held even of a maniage (Mcf'lurg ■u. Terry, 21 N". J. Eq. 225). Assent must be manifested ; silence does not always give consent. Mactie,r v. Frith, 6 Wend. 103, 21 Am. Dec. 262 ; Borland v. Guffey, 1 Grant Cas. 394 ; Rutledge v. Greenwood, 2 Desau. 389. A mere men- tal determination to accept, without attempt to indicate it to the other party, does not bind the other ; neither does an act which does not imply acceptance, though perhaps accompanied by such detennination. White v. Corlies, 46 N. Y. 467 ; Maetier v. Frith, 6 Wend. 103, 21 Am. Dec. 262. But assent need not be formally expressed : it may be given either by writing, by words, or by acts. Houghwout V. Boisaubin, 18 N. J. Eq. 315 ; and see Palmer v. Stephens, 1 Den. 471 ; Speckels v. Sax, 1 E. D. Smith, 253. It is readily inferred from circum- stances, as from a promisee's being present and making no objection (Slocomb v. Lurty, 1 Ilempst. 431) ; from his answering without objecting (JIactier v. Frith, 6 Wend. 103, 21 Am. Dec. 262); from his availing himself in any manner of the promise (Attix v. Pelan, 5 Iowa, 336 ; Brusle v. Thomas, 7 La. Ann. 349) ; from (m) Holt V. Ward Clarencieux, 2 Str. The same rule prevails in the civil and 938. Pothier, Obligations, part 1, art 4. French laws. .35 * 15 FORMATION OF CONTRACTS. [BOOK I. party to the other, an acceptance of that offer or proposal, and, unless it was clearly not required by the proposer in the Ids doing anything under the agreement on his part (Street t. Chapman, 29 Ind. 142 ; Smith?;. Morsf, 20 La. Ann. 220; Morse 1;. Bellows, 7 N. H. 549, 2S Am. Dec. 372 ; MeMillan u. Michigan, &c. R. E. Co., lb" .Mi.h. 79 ; Crook o. Cowan, 64 N. C. 743 ; Patton v. Hassiiiger, 69 Pn. St. 311 ; but see Moriill r. Teliama Consolidated Mill, &e. Co., 10 Nev. ]-25). When words of a.ssent are relied npon as showing the meeting of minds, it is of little conseijuente how in- formal they are ; any words which matiifest actual agreement will suffice. Chesapeake, &c. Canal Co. ■». Baltimore, &c. R. K. Co., 4 Gill & J. 1 ; Thrus- ton V. Thornton, 1 (_'ush. 89. The assent of the two parties must, however, relate to an existing subject-matter (Gibson x. Pelkie, 37 Mich. 380) ; they must assent to the same things and in the same sense (Hazard v. New England Marine Ins. Co., 1 Sunm. 218; Salters v. Pruyn, 18 How. Pr. 512); though a party's misunderstanding the effect of language to which he assents will not re- lease him (Ncufville v. Stuart, 1 Hill. Ch. l.^i'J ; Phillip v. Gallant, 3 Thomp. & C. 618, 1 Hun, 528 ; alfd 62 N. Y, 2.')6). Where a misapprehension exists be- tween the iKu-ties to a contrac^t with reference to it.s subject-matter, — as where one of them intends to sell a particular thing and the other intends to buy a different thing, or where the parties to u si\le suppose the subject of it to be in existence, when, in fact, it has been destroyed, — such misapjirehension, if satisfactoiily proveil, will sliow that no contract has in fact \xv\\ made ; but the .-jame conse- quence will not result from a misapprehension of one or both of the parties with reference to the legal eti'ect of the terms of their coutrai t, unless it is altogether unintelligible. Eice v. Dwight Manuf. Co., 2 Cush. SO. Assent must be given with knowledge or means of knowledge of all material facts affecting his legal and equitable rights, and free of erery fraud or imposition practised by the other party. Flagg v. Mann, 2 Samn. 489, 563 ; Howard v. Carpenter, 11 Md. 259 ; Duncan ■». Hogue, 24 Miss. 671 ; Gray?). Mun-ay, 3 Johns. Ch. 167, 18S. It is from the moment when actual mutual assent, manifested in some overt way, ex- ists, that the agreement becomes binding, and knowledge of both that such assent lias been given is not essential. Mactier v. Frith, 6 Wend. Iii3, 21 k\\\. Dec. 2(i2, and see Freeman's note, ib. 305. The assent of the minds of both parties is necessary to constitute a contract ; but it is not necessary that the mutual consent of the two minds should occur at the same time. Sanford r. Howard, 29 Ala. 684 ; Falls v. Gaither, 9 Port. 605 ; Holtzman v. Millaudon, 18 La. Ann. 29. In the ordinary coui'se of oral negotiations (except where the oH'er amounts to an " option " or " refusal " given for a consideratiorj), the proposer may withdraw or modify it at any time before acceptance has been manifested. Still v. Hnide- kopeis, 17 Wall. 384 ; Sanford v. Howard, 29 Ala. 684 ; Larmcm -v. Jordan, 56 111. 204 ; School Directors v. Trefethrcn, 10 Bradw. 127 ; Holtzman v. Millaudon, 18 La. Ann. 29 ; Barton v. Shotwcll, 13 Bush, 271. If not withdrawn or modi- fied, an offer made without a limit of time for accepting subsists until acceptance (Halloek v. Commercial Ins. ('o., 26 N. J. L. 268; Wylie v. Bryce, 70 N. C. 442 ; Cheney v. Cook, 7 Wis. 413) ; yet if acceptance be delayed clearly beyond a reasonable time, the proposer may repudiate it (Mizell v. Burnett, 4 Jones L. 249 ; McCurdy v. Rogers, 21 Wis. 197). If the offer be conditional on acceptance within a specified time, acceptance must be signified within that time, or the pro- poser is released (Potts v. Whitehead, 20 N. J. Eq. 55) ; yet it has been held that where one has " until " a certain day to aicept, the acceptance may be made dur- ing that day if the offer be still open (Houghwout v. Boisaubin, 18 N. J. Eq. 36 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 15 first iristauee, there must be a communication of such accept- ance. If the terms of a contract founded upon mutual promises 315). The recipient of a proposal cannot recover as npoa a.eontr!ict, withont prov- ing tliat he took the proper steps to inform the party making the proposal, of his acceptance of it. Bruner v. Wheaton, 46 Mo. 363 ; Emerson v. Gratf, 29 Pa. St. 353, Giving notice of a, refusal to accept is not, ordinarily, m-cessary. Corning I'. Colt, 5 Wend. 253. The manifestation of an unqimlitieil acceptance is what completes the contiact ; without this no contraet arises. The acceptance must be absolute, unqualified, unreserved ; there can he no eff(wtual acceptance with varia- tions or eondition.s, until these aj-e agreed to by the othei- party. To constitute a contract, the minds must meet upon all points. The recipient of a proposal either accepts it, in which case all its terms become binding, or he does not, in which ease there is no contract ; and the latter ease includes his coupling his acceptance with resei-»'ations or additional .stipuiitions. Baker e. Johnson County, 37 Iowa, 186 ; Steel ». Miller, 40 Iowa, 402 4 Belfast, &c. B. Co. v. Unity, 62 Me. 148 ; Bruner i'. Wheaton, 46 Mo. 363 ; see Hart -y. Bray, 50 Ala. 446 ; Northam e. Gordon, 4€ Cal. 588 ; Bethel . New York, 6 Duer, 446; Highland County t. Rhoades, 20 Ohio St. 411 ; State v. Shelby County, 36 Ohio St. 326. The adverti.-ienicnt-^ and jiroposal.-i for a government contract do not even form a part of the coiitiact, unless referred to in it. Harvev v. United Ktates, 8 Ct. of CI. 501. As to advertisements offering rewards, use post, p. * 24, and American note. (o) Routledge v. Grant, 1 JIoo. & P. 29. And see Heyworth v. Knight, 17 717 ; Bing. 653 ; (Jope v. Albinson, 8 C. B. N. s. 298 ; 33 L. J. C. P. 298. Exch. 185 ; Felthouse v. Bindley, 11 (7) Gibbons v. N. E. Metropolitan C. B. N. s. 869 ; 31 L. .1. C. P. 204. Asylum District, 11 Bear. 1. (;j) King,ston-upon-Hull v. Peteh, 10 (r) Lewis r. Brass, 3 Q. B. D. 667 ; Exch. 610 ; 24 L. J. Exch. 23 ; Chin- Ro.-isiter r. Miller, 3 Ap. Ca. 1124. nock V. Ely, 4 De G. J. & S. o:;,s ; (x) Hussey v. Horne Payne, 4 Ap. Honeyraani;. Marryat, 26 L. ,1. Ch. 619 ; Ca. 311. Appleby r. Johnson, L. R. 9 C. P. 158; (0 Bonnewell r. Jenkins, 8 Ch. D. Brogden v. Metropolitan Rv. Co., L. R. 70, C. k. 3 Ap. Ca. 666 ; Winn v. Bull, 7 Ch. D. ■5Q CHAP. I.] THEIK NATURE AND CONSTITUENT PAETS. * 16 the other party has been communicated to him or his agent, (u) Thus, if a man applies for shares in a company, and the directors allot them to him, and, after the allotment, but before it is com- municated to the applicant, he withdraws liis application, there is no complete contract, and he is not bound to accept them. («) But although the applicant must have notice of the fact of the allotment, yet it is not necessary that a formal notice should be sent to him. It is enough if he is made aware that the com- pany have accepted his application ; but the mere entry of his name on the register of shareholders is not sufficient for this purpose, (y) An offer of a * contract sent by [ * 16 ] letter cannot be withdrawn by merely posting a subse- quent letter which does not in the ordinary course of the post arrive until after tlie offer has been accepted. (2) A promise of marriage, so long as it remains unaccepted, amounts to a mere proposal or offer, which may be retracted at any time. Before, therefore, the plaintiff can succeed in an action upon such a promise, it must be shown that he or she accepted the proposal, and so entered into a corresponding engagement ; and this ac- ceptance may be proved and established by the conduct of the party, as well as by express words. And if an offer is made to another party, and in that offer there is a rcfjuest, express or implied, that he must signify his acceptance by doing some particular thing, then, as soon as he does that thing, he is bound, (a) Where in a lease there is an option to purchase upon giving notice, there is a binding contract as soon as notice is given. (&) If an offer has been made by one man to sell goods to another, such offer is not, of course, binding until it has been accepted by the party to whom it has been made, as the one cannot be held liable to the other for not selling the goods, unless that other, by accepting the offer, has bound himself to purchase. Where the defendant proposed to sell goods to the (u) Mclver v. Richardson, 1 M. & S. {y) Gunn's case, L. R. 3 Oh. 40 ; 37 557 ; Mosley v. Tinklen, 1 C. M. & R. L. J. Ch. 40. 692. (:) Byrne v. Van Tienhoven, 5 C. P. (x) Hebbs' case, L. R. 4 Eq. 9 ; 36 D. 345. L. J. Ch. 748; Graham, Ex parte, 30 (a) tirogden v. Metropolitan Ry. Co., L. J. Bk. 42 ; Ch. 861 ; Pellatt's case, 2 Ap. Ca:. 666 ; per Lord Blackburn, 691. L. R. 2 Ch. 527; 36 L. J. Ch. 613. {b) Mills v. Haywood, 6 Ch. D. 196, C. A. 39 * 17 FORMATION OF CONTRACTS. [BOOK I. plaintiff at a fixed price, and gave him, at his request, a certain time to determine whether he would buy them or not, and the plaintiff, within the time, determined to buy them, and gave notice thereof to the defendant, and offered to pay the price, but the latter then receded from his offer, and refused to deliver the goods and accept the money : it was held, in an action for the non-delivery of the goods, that there was no complete contract of sale ; that, as the plaintiff was not by the original con- tract bound to purchase, there was no consideration to bind the defendant to sell ; and that the engagement was all on one side, and was therefore a nudum pactum, (c) This case, however, does not appear to be satisfactory, as the plaintiff seems to have accepted the offer before the withdrawal of it. A proposal once made is always open for acceptance until it is withdrawn to the knowledge of the other party, and such other party has the option of accepting the proposal until the moment when he re- ceives notice of withdrawal, (d) And, where there was a pro- posal by the defendant to take a lease fiom the plaintiff on certain terms, and to this proj)osal the plaiutilf was to give a definite answer within six weeks, it was held that, if [ * 17 ] six weeks iire given by one party to accept an * offer, the other lias the same period to put an end to it. The contract must be mutual ; and the one party cannot be bound without the other, (e) If, however, anything has been given or done as the consideration for the promise — if, for instance, the party to whom it is made has agreed to incur any expense or labor in consideration of the offer being continued or kept open for a certain time — then the party making the offer is not at liberty to retract it. AVhen the promise has been accepted and the contract concluded, the acceptance cannot be revoked ; and neither party is at liberty, without the consent of the other, to rescind the conti'act, or " be off" from his bargain. (/) But if the party to whom the offer is made does not accept it in the very terms in whicli it is made, and some new qualification or condition is annexed to the acceptance, the party making the (c) Cooke V. O.xley, 3 T. E. 653. (e) Best, C. J., Routledge v. Grant, (d) Brjncv. Leon van Tienhoven, 49 4 Bing. 6,53 ; 1 Moo. & P. 731. L. J. C. P. 316 ; Stevenson v. McLean, (/) Grant v. Hunt, 1 C. B. 44. 5 Q. B. D. 346. 40 CHAP. I.] THEIR NATUEE AND CONSTITUENT PARTS. * 18 offer is, of course, not bound by the acceptance, (g) But an acceptance is not made conditional by an addition which is im- material, (h) nor by the existence of a misunderstanding between the parties as to the construction of collateral terms not part of the agreement itself (i) So if there is a conditional offer and an unconditional acceptance there is no contract, (k) If a time is prescribed within which the proposal must be accepted, the offer comes to an end at the expiration of that time, and a sub- sequent acceptance is ineffectual. If no time is prescribed, the acceptance must be made and notified within 'a reasonable time. (/) An offer to sell may be withdrawn before acceptance without any formal notice, as where the person who makes the offer sells the thing to a third person ; even, as it should seem, although the person to whom the offer Was made has no knowledge of the sale, (m) The contract dates from the acceptance, not from the date of the offer, (m) Where a person accepts an offer, he must not adopt the pro- posed terms, and yet slightly vary them, without calling the attention of the party making the offer to the fact of the varia- tion. (?i)8 Biddings at an auction are mere offers, which may be retracted *at any time before the hammer is down [* 18 ] and the offer has been accepted. Where the defendant had retracted his bidding at an auction, the court said : " The assent of both parties is necessary to make the contract binding : that is signified on the part of the seller by knocking down the (g) Dnke v.- Andrews, 2 Exch. 290 ; (i) Baines v. Woodfall, 6 C. B. N. s. 17 L. J. Exch. 231 ; Gilkes v. Leonino, 657, 676 ; 28 L. J. C. P. 338. 4 C. B. N. s. ."iOl ; Jordon v. Norton, (Jc) Shakleford's case, L. E. 1 Ch. 4 M. & W. 161 ; Addinell's case, L. R. 567 ; Roger's case, L. R. 3 Ch. 633. 1 Eq. 225 ; 35 L. J. Ch. 75 ; Cropley v. (I) Ramsgate Victoria Hotel Co. v. Maycock, L. R. 18 Eq. 180 ; Stanley v. Montiliore, L. R. 1 Ex. 109 ; 4 H. & C. Dowdeswell, L. R. 10 C. P. 102 ; Jack- 164 ; 35 L. J. Ex. 90 ; Bailey's case, L. son V. Turquand, L. R. 4 H. L. 305 ; R. 5 Eq. 428 ; 3 Ch. 592. Wynn's case, L. R. 8 Ch. 1002 ; Beck's (m) Dickenson v. Dodds, 2 Ch, D. case, L. R. 9 Ch. 392. 463. (h) Clive V, Beaumont, 1 De G. & S. (u) Proprietors of English and For- 397. eign Credit Co. v. Arduin, L. R. 5 H. L. 64. 8 See Appendix, Vol. III. 41 * 18 FORMATION OF CONTRACTS. [BOOK I. liammer, which was not done till the defendant had retracted. An auction is not unaptly called locus pocnitcntice. Every bid- ding is nothing more than an offer on the one side, which is not binding on the other side till it is assented to." (o) Acceptance of Offers made by Post.' — Where the defendants wrote to the plaintiffs, making them an offer of merchandise at 1 "When propo.sal and acceptance are communicated by letters jjassing through the mails, two peculiar questions arise : At what time is the contract completed ? Which is the place of the contract ? The cun'ent of American authority regards the moment of mailing the acceptance as the time, and the place where this is done as the place, at which the contract is made. There is an apparent inconsistency in treating the mailing an acceptance as completing the coiitiact, for until the jiroposer receives it how can it be said that the minds have met '. Suppose that the proposal is meantime withdrawn, or that the acceptance miscarries altogether '. Theoretic answers to these difficulties are, that sending a, letter containing a jiroposal is a continuing offer, and mailing an acceptance is a complete meeting of minds in fact, and proposer's knowled;,'!' of it at the moment is not needful ; also that, by adopting the mail as the medium of proposing, the proposer impliedly con.sents to it for transmission of answer, hence mailing is a delivery to him per agent. A practical reason advanced in Adams v, l^indsell, 1 Bain. & Aid. 681, has probably had greater inlluence. The ciucsliuu there being whcthev plaintiffs' mailing an acce|itancL' bound defendants to ]ierfonn what they had by mail proposed, the court said that if it did not, "no contract could ever be completed by post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plain- tiff's ought not to be bound till they had received notihcation that the defendants had received their answer, and assented to it. And this might go on ad infinitavi." Or, as was .said in Dunlop r. Higgins, 1 Ho. of L. t'as. 381, "Common sense tells us that transactions cannot go on without such a rule; " or in Thompson v. .lames, 18 Dunl. 1, "no contract could evei' be safely proposed by letter if the acceptance must arrive before the contract is completed." Upon one ground or another, and notwitlistanding some doubts and conflict in earlier cases, the rule is now well established, that timely mailing of an acceptance sufficiently addressed and jirepaid completes tlie contract, irrespective of the fate of the letter or of any notice of revcication arriving afterward. Taylne r. Merchants' Five In.s. Co., 9 How. 390 ; liritton r. Phillips, -li How. Pr. Ill ; Falls .. t:aither, !i Port. 605; Averill v. Ilcdgp, 12 Conn. 421 ; Levy ■». Cohen, 4 Ca 1 ; ilouie r. riersLai, 6 Iowa, 279 ; Miirbiy'!'. Harvey, 90 111. 525, Vl Am. Eep. 35 ; Kentucky Mut. Ins. Co. i>. Jentes, 5 Ind. 96 ; Chiles v. Nelson, 7 Dana, 281 ; Hutcheson o. Blaheman, 3 Met. (Ky.) 80 ; Wheat v. Cii>s'i, 31 Md. 99; Stockham v. Stockham, 32 Md. 196 ; Lungstrass !•. German Ins. Co., 48 Mo. 201 ; Abbott v. Shefiard, 48 N. H. 14 ; Halleck v. ComnuTcial Ins. I'o., 2 Dutch. 80 ; Polts r. Whitehead, 20 N. J. Eq. 55 ; Jlao- tier V. Frith, « Wend. 103 ; Va.s^;ir v. Camp, 11 N. Y. 441, aff'g 14 Barli. 341 ; Trevor v. Wood, 36 N. Y. 307; Myers v. Smith, 48 Barb. 614; Beard.sley v.' Davis, 52 Barb. 159 ; Britton v. Phillips, 24 Plow. Pr. Ill ; Hamilton v. Lycom- ing Mut. Ins. Co., 5 Pa. St. 339 ; AVashburn v. Fletcher, 42 Wis. 153. The gen- eral drift of American opinion is well expressed by Justice Nelson in Tayloe v. (o) Payne V. Cave, 3 T. R. 148 ; Warlow f. Harrison, 1 E. & E. 395 ; 28 L. J. Q. B. 18. 42 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 18 a fixed .price, they " receiving an answer in course of post," it was held that there was a binding contract of sale the moment Merchants' Fire Ins. Co., 9 How. 390, as follows : "On the acceptance of the terms proposed, transmitted by due course of mail, the minds i>( the parties have met on the subject, in the mode contemplated at the time of entering upon the negotiation, and the contract, becomes complete. The party to whom the proposal is addressed has the right to regard it as intended as a continuing offer, until it shall have reached him, and shall be in due time accepted orrejected." So a con- tract founded on a proposal by letter transmitted through a messenger is completed by delivery of an answer containing acceptance to the messenger, and is not post- poned till the delivery of it by him to the proposer. Bryant v. Booze, 55 Ga. 438 ; Fox v. Turner, 1 111. App. 153. Eulings on matters of detail connected with the letter of acceptance have been that it must be distinctly expressed ; there must be some overt act ; an intention to insert in a letter an acceptance of an offer, if it is accidentally omitted, is of no effect (Fox v. Turner, 1 111. App. 153 ; Lungstrass v. German Ins. Co., 48 Mo. 201 ; see also Chicago &e. Ry. (^'o. v. Dane, 43 N. Y. 240) ; that the acceptance must be unconditional ; a proposal to accept, or acceptance upon ternjs \arying from those offered, is a rejection of the offer (Eliason v. Hen.-^liaw, 4 Wheat. 22,j ; Esniay v. Gorton, 18 111. 483 ; Baker v. Johnson County, 37 Iowa, 186 ; Jennes v. Mt. Hope Iron Co., 53 Me. 20 ; Myers v. Smith, 4S Barb. 614 ; Bruce v. Pearson, 3 Johns. 534 ; Tuttle V. Love, 7 Johns. 470) ; that it must be posted within tlie time lim- ited by the offer, if any (Maclay v. Harvey, 90 lib 52rj ; Taylor v. Eennie, 35 Barb. 272 ; 22 How. Pr. 101); if none, then within a reasonable time, else the pro- poser is discharged (Martin v. Black, 21 Ala. 721 ; Chicago &c. Ey. Co. v. Dane, 43 N. Y. 240) and four months is too long a delay (Chicago &•:. l!y. Co. v. Dane, 43 N. Y. 240) ; that if delivery of the letter containing the offer is delayed by fault of the sender, as where he inisilirects it, the offer stands extended, and the addressee has a reasonable time after receipt to answer { Mai-tier v. Frith, 6 Wend. 103 ; Averill v. Hedge, 12 Conn. 424 ; that to deposit the acceptance in the post- office without prepayment of postage is not sufficient (Britton v. Phillips, 21 How. Pr. Ill) ; that if delay in transmission is attributable to fault of the accepting party, the other is not bound (Thayer i). Middlesex Mut. Fire Ins. Co., 10 Pick. 326 ; Bryant v. Booze, 55 Ga. 438) ; and that change injKTsminel of firm to whom proposal is made by letter, as where new members are taken in without proposer's knowledge between receipt of proposal and mailing acceptance, may defeat it {National Bank v. Hall, 101 U. S. 43). It might be thought that, by analogy, a letter revoking a proposal sent by mail should be deemed effective from the moment of posting it ; but such is not the rule : revocation of an offer does not take effect until received, and if before then an acceptance has been posted, the revocation is inoperative. This is a neces.sary result of the rule that mailing acceptance closes tlie contract, and most of the cases above cited to that rule support this, either directly or by implication. If the proposition be made in writing and sent by post, the person making the offer can retract by a subsequent letter reaching the other paity at any time before an accept- ance is written and put in the mail ; but as soon as such answer is placed in the mail the contract is completely closed as to both parties. Although, therefore, a letter containing a retraction of the offer be actually on the way at the time when the letter of assent is mailed, yet the contract is closed unless such letter of retraction be received previous to the mailing of the assent. Story, Cont. § 498 ; see also Eskridge v. Glover, 5 Stew. & P. 264 ; Wheat v. Cross, 31 Md. 99. It 43 * 18 FORMATION OF CONTRACTS. [BOOK I. the letter accepting the offer was posted, and that the defendants were not at liberty to retract their offer before the arrival of the time for receiving the answer ; otherwise, it was observed, no contract could ever be completed by post. In this case the defendants misdirected a letter, and so caused a delay in its receipt and in the return of the answer, and, not having received the answer at the expected time, they sold their merchandise to another person ; and it was held that, as the delay had been occasioned by their own neglect, and not by any omission or is said that an offer made by mail may be countermanded by telegraph, while on the way ; but an acceptance once mailed may not be revoked by telegraph. 14 Am. L. Reg. 410. A great nuniher of cases reiterate that the letter of acceptance must signify assent to the terms proposed without reservation or condition ; if .any variations are suggested (other than such as can be disregarded as immati-rial) there is no contract ; but this is only applying a familiar general rule of all consensual con- tracts to the case of contract by letter. See ante, p. * 15, American note 1. The whole subject of contracts by correspondence is discussed in detail in articles in 22 Alb. Law J. 424 ; 32 Am. Rep. 40 ; 10 Cent. L. J. 63 ; West. Jur. 337. For civil-law views of it, see 7 Am. L. Rev. 430 ; also Lang. Cas. f.'ontr. 155; Pothier on Sales, No. 32. The following decisions are found on the question whether, when the correspond- ence moves between towns in different States, the place where the acceptance is mailed or that where it is received is deemed the place of making the contract. Where A, being in a State where the sale of lottery tickets was unlawful, wrote to B in a State where the sale was lawful, to purchase tickets, — held, that the sale was completed in the State where the assent was given by mailing a letter of acceptance. Mclntyre v. Parks, 3 Met. (Mass.) 207. Where a person orders goods by a letter mailed in one State, but addressed to and delivered in another State, and the goods are put up for him in the latter State, and there delivered to a carrier, the contract is generally to hr deemed made in the latter State, and its validity, even as regards the eajiaeity of the per- son writing the letter to make the contrait, will be determined by the law of the latter State. Thus a guaranty signed in Massaihusi'tts by a married woman there domiciled, and sent by mail to another State, and assented to and acted upon there, may be enforced by action in Massachusetts if. by the law of the other State, a married woman might give such a guaranty. Milliken v. Pratt, 125 Mass. 374. See Northampton, &c. Co. v. 'Tuttle, 40 N. J. L. 47ii; Shattuck v. Life Ins. Co., 4 Cliff'. 598. "When negotiations for a contract are carried on between two parties living in different States, partly by the interchange of letters and partly by oial commuui- c.Ttions through an agent, the contract is regarded as made in the Slate or place where it first takes effect, so as to become a binding obligation U]ion both parties. Where the plaintiff, being in New York, agreed in this manner with defendant, the manager of an opera in Philadelphia, to go there and make her cUbut, she to he assured, if she did not fail in the estimation of the public and the press, of an engagement between the parties,— 7ip7fi, that the contract was not made in New York, but in Philadelphia, conditionally upon her fulfilling the test of success. Waldron v. Ritchings, 9 Abb. Pr. N. s. 369. 44 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 19 default on the part of tlie plaintiff, the answer must be taken to have come back in due course of post, and that the defendants were liable upon the contract for the damage sustained by the plaintiff by reason of his loss of the bargain and of the non-de- livery of the goods, (p) If the letter in acceptance of the offer miscarries, and never reaches its destination, the contract is never- theless complete, (q) unless the miscarriage is owing to the fault of the sender. But a man is not bound by communicating his acceptance to his own agent only ; in order that the con- tract maybe complete and the acceptance * irrevocable, [ * 19 ] there must be a communication of the acceptance to the proposer or his agent, (r) Contracts made by Telegram.^ — Where an order is Sent by telegram, the post-oftice authorities are only agents to transmit the message in the terms in which it is delivered to them, and if the telegraph clerk makes a mistake in the transmission there is no binding contract, (s) Contracts by Deed are contracts in writing sealed and deliv- ered by the parties to them. No cause, motive, or consideration beyond the mere will of the party making the contract is neces- sary to give them validity ; and no one can be permitted ' See post, p. * 56, where the subject is mentioned again, and the American view is given. (p) Adams v. Lindsell, 1 B. & Aid. Perhaps the true rule is that, if the per- 681 ; Potter v. Saunders, 6 Hare, 1 ; son making the offer has expressly or Newcombe v. De Eoos, 2 E. & E. 270 ; impliedly authoiized the receiver of the 29 L. .1. Q. B. 4 ; Taylor v. Merchants' offer to send an answer by post, the per- Fire Insurance Co., 9 How. S. C. son making the offer is bound when the 390. letter containing acceptance is posted, (q) Dunlop V. Higgins, 1 H. L. C. on the gi'ound that he has constituted 381 ; Duncan v. Tojjham, 8 C. B. 225. the post-office his agent to receive the Some doubt has lately been thrown on acceptance ; but that when no such this point in British American Telegi-aph authority is expressed or can be implied, Co. ■». Colson, L. E. 6 Ex. 108 ; 40 L. the person making the offer is only J. Ex. 97 ; See also Reid])ath's case, bound when the acceptance actually L.R. II Eq.86; and Townsend's case,L. reaches him. See per Thesiger, L. J., R. 13 Eq. 148 ; British American Tele- p. 218, ib. , and^er Lord Blackburn, in graph Co. v. Colson has, however, been Brogdeii v. Metropolitan Rj'. Co., 2 Ap. disapproved of in Hairis's case, L. R. 7 Ca. 691. Ch. 587 ; 41 L. J. Ch. 621 ; and Walls' (r) Ante, p. * 15. case, L. R. 15 Eq. 18 ; and has been (s) Henkel v. Pape, L. R. 6 Ex. 7 ; overruled in Household Fire Insurance 40 L. J. Ex. 15. Co. V. Grant, i Ex. D. 216, C. A. 45 * 19 FORMATION OF CONTRACTS. [BOOK I. (except on the ground of fraud or deceit) to aver or to prove anything in contradiction to what he has solemnly and deliber- ately avowed by deed. (;!) The courts, however, will not enforce specific performance of a voluntary covenant ; (w) and, for the purpose of ascertaining whether a covenant is voluntary or other- wise, it may be shown that there was in fact no consideration, although one is expressed on the face of the deed, (»:) or that there was a good consideration, altliough the deed only expresses a nominal one, {y) or none at all. {£) Authentication by Deed. — The use of scals for the authenti- cation of contracts and writings appears to have been almost unknown in England prior to the Conquest. Under the Anglo- Saxon government, contracts and written declarations and memo- rials were solemnly ratified with the sign of the cross in the presence of numerous witnesses, and derived all their force and efficacy from their publicity, {a) The custom of using a seal has prevailed in the far East from the most remote antiquity down to the present time, (h) The practice was brought into general use in England by the Normans after the Conquest, who caused the ancient Saxon contracts and writings to be sealed with waxen seals in the presence of witnesses, and gave them the names of charters or deeds, (c) (t) Sharington u. Strotton, Plowd. 1, Lane's Arabian Nights, note 11, p. 26. 308 a, 309; Jlorley v. Boothby, 3 Bing. Ste the Arabian Xii;lits, passim, as to 111 ; 10 Moore, 404 ; Fallowes V. Tay- the use of seals, and the story of the lor, 7 T. R. 477 ; Shubrick i;. Salmond, amorous hulj' and the ninety -eight 3 Burr. 1639 ; 1 Fonbl. En. 344, 7l. u,. ; "seal-rings" of her different loveis. 2 Finch, 108, 110. (r) Ingulph, p. 901 ; Sclden, Ead- (u) Kekewick v. Manning, 1 De G. nieri Hist. p. 160, ed. 1623. As to the M. & ft. 176, 188. use of scals, see Dugd. Antiq. War- {.e) Wilson v. Keating, 28 L. J. Oh. wickshire, p. 972 ; Dufresne, Gloss. 898. toin. 3, p. 854 ; Stabilimenta S. Lndov. {y) Leifchild's case, L. E. 1 Eq. Eeg. Fran. lib. 1, c. 70, 71. Mona.st. 231. Angl. torn. 1, p. 810 ; Selden's Titles {:) Llanelly Eailway and Dock Co. of Honor, part 2, c. 5, pp. 651, 652 ; V. London and North-Western Ey. Co., Dufresne, torn. 3, j). 854. One of the L. E. 8 Ch. 942. most ancient sealed documents of any (a) Madox, Dissert, xxvi. form. Angl. authenticity in England is the charter pp. 115, 131, 136, 176 ; Spelman's Gloss, of Edward the Confessor to Westminster p, 228 ; Monast. Angl. vol. 5, p. 269, Abbey, ('o. Lift. 7 a, speaks of a seahil col. 1. charter as early as A. D. 956. Vin. Abr. (h) Esther, u. 8 ; Jeremiah, c. 32 ; 1 Faits, 20. Kings, c. 21. See also Daniel, o. 6 ; 46 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 20 '^ Requisites of Deeds. — " Every deed ought to have [ * 20 ] writing, sealing, and delivery ; and if the parties be illit- erate, it ought to be read also." It may be printed or written on parchment or paper ; and it is good and valid, although it men- tion no time or date or place of making, or be dated at one time and delivered at another, or have a false or impossible date. It is essential only that it be sealed and delivered ; for " any agree- ment iu writing sealed and delivered becoraeth a deed." (d) V>y the common law, a deed may be written in any liand or in any language ; but the legislature has required all " certificates, pat- ents, charters, bonds, records, judgments, statutes, and recogniz- ances " to be written in the English language, (e) Signing is not essential to the validity of a deed at common law; (/) and the statute of frauds, wliich requires certain contracts to be authenticated by a signed writing, does not e.xtend to deeds. {(/) It now rarely happens that the party executing a deed actually seals it with his own hands, or with his own seal The seal is fixed or compressed on the deed by the person professionally employed, the executing party merely acknowledging, in the presence of witnesses, the seal to be his seal. It has been held also that one and the same seal may be the seal of half-a-dozen persons at the same time ; for, " if one of the officers of the forest put one seal to the rolls liy assent of all the verderers and other officers, it is as good as if every one had put his several seal ; as in case divers men enter into an obligation, and they all consent, and set but one seal to it, it is a good obligation of them all." {h) But they must all be actually present consenting to the act ; otherwise the execution is not good, {i) The sealing, or the acknowledgment of the seal, must be made after the deed has been written, and before its delivery ; for if a blank piece of paper or parchment be sealed and delivered, and afterwards written upon, it is no deed ; (Ji) and if endorsements or schedules are written or annexed to deeds after their execution, the deed must (d) 11 Co. 27 b, 28 a.; Co. Litt. 171 (g) Cherry u Heming, 4 Excli. 637; b.; Shep. Touch. 1 ch. 4. 19 L. J. Ex." 63. (e) 4 Geo. 2, c. 26. (h) Ball v. Dunsterville, 4 T. K. 313; (/) 1 Sugd. Powers, 297 ; Prest. Shep. R. v. Longnor, 4 B. & Ad. 647. Touch. 56 b. ; Cooch v. Goodnian, 2 Q. B. (i) Harrison v. Sykes, 7 T. E.. 207. 597 ; Tupper v. Foulkes, q'c. B. n. s. (k) Perkins, a. 118; Com. Dig. Fait. 797, 803; 30 L.J. C. P. 214. A. 1. 47 *21 FORMATION OF CONTRACTS. [BOOK I. be re-sealed and re-delivered, or the subsequent addition to the contract will be nugatory and invalid. (I) A bail bond which has been executed before the condition was filled up [ * 21 ] has been held to be void ; (i?i) * and so has a deed of con- veyance or transfer of shares, executed by the proprie- tor of such shares with the name of the purchaser in blank, and handed over by him to the plaintiff, by whom, on tlie sale of such shares to the defendant, the defendant's name was inserted as the purchaser. (») And if a deed be delivered, and a blaidc left therein be afterwards improperly filled up (at least, if that be done without the grantor's negligence), it is not the deed of the grantor, (o) Delivery of Deeds.^ — Until the sealed writing is delivered, it is not a deed. The delivery " may be made by the party himself ^ The practice .so general throughout the United States of putting conveyances and mortgages on a public record, which becomes notice of their contents to subse- quent purchasers and creditors, has given lise to a question proliably little known in England; Whether registering an instrument under the recording laws involves or shows delivery ? Some early decisions, taking for granted that a deed or mort- gage is for the benefit of the grantee or mortgagee, were in the alfirinative ; and it was argued that even though the maker of the instrument had placed it upon record directly, yet his doing so might be treated as a delivery, and acceptance by the party of the second part might be presumed ; that from the a[)pearance of a deed upon the record the courts might assume that either the grantee had jdaced it there after formal delivery, or the grantor had delivereil it to the register for the grantee's benefit. But cases occurred in which tlie presumption of benefit to the grantee from the conveyance was contrary to the fact ; in which, owing to inser- tion of onerous conditions, the deed was injurious to him, and to treat it as delivered and accepted constructively would be unjust. For example, in State.s where the foreclosure laws allow treating a grantee who has assumed payment of a mortgage on the premises as the primary debtor, and rendering judgment against him per- sonally for any deficiency, an owner of lands mortgaged for more than their market value might, if acceptance of a deedv.'ere always presumed from recording, cast his debt upon a stranger by executing a conveyance containing a recital that the mort- gage was assumed by the grantee, and giving tliis in for registiatiou without the grantee's knowledge. The register would, as matter of course, record the deed, the mortgagee's attorney would find it there when pireparing pajiers to foreclose, and would make the grantee the chief defendant, and the grantee would be with- out remedy (except by action against the, probably insolvent, grantor) if the courts should insist on the presumption of acceptance as conclusive. Accordingly the most stringent form of the rule as now administered is that appearance of a deed or mortgage on the record raises a presumption of delivery and acceptance ; but the (/) Weeks c. Maillardet, 14 East, 570; {n) Hibblewhite v. M'Morine.C M. & Sellin V. Price, L. E. 2 Exch. 189. W. 200. (m) Powell V. Duff, 3 Camp. 181. (o) Swan v. North Briti.sli Austral- asian Land Co., 2 H. & C. 175. 48 CHAP. I.] THEIll NATURE AND CONSTITUENT PARTS. * 21 that doth make the deed, or by any other, by his appointment or authority precedent, or assent or agreement subsequent '' ; {p) presumption is a slight one, and may easily be repelled by evidence that the gran- tee or mortgagee never did in fact accept. Tompkins v. Wheeler, 16 Pet. 106 ; Bulkley v. Buffington, 5 McLean, 457 ; Bensley v. Atwill, 12 Cal. 231 ; Wellborn V. Weaver, 17 Ga. 267 ; Warren v. Jacksonville, 15 111. 236 ; Masterson v. Cheek, 23 111. 72 ; Prettyman v. Goodrich, ib. 141 ; Rowell v. Hayden, 40 Me. 582 ; Jack- son V. Cleveland, 15 Mich. 94 ; Ingraham v. Grigg, 21 Miss. 22 ; Boody v. Davis, 20 N. H. 140 ; Lawrence v. Farley, 24 Hun, 293 ; Jackson v. Perkins, 2 Wend. 308 ; Gilbert v. North American Fire Ins. Co., 23 Wend. 43 ; Balbecii. Donaldson, 2 Grant Cas. 459 ; Chess v. Chess, 1 Pa. 43 ; Juvenal v. Jackson, 1 Pa. St. §19 ; Boardman v. Dean, 34 Pa. St. 252 ; and see Kille v. Ege, 79 Pa. St. 15. And many of the decisions (those of the New England States seem particularly distinct) re- quire the party claiming under the instrument to make some proof additional to its appearance on the record, that it was accepted by, or at least known to, the second party. Carver v. Jackson, 4 Pet. 1 ; Wiggins v. Lusk, 12 111. 132 ; Oxnard V. Blake, 45 Me. 602 ; Berkshire Mut. Fire Ins. Co. v. Sturgis, 13 Gray, 177 ; May- nard v. Maynard, 10 Mass. 456 ; Harrison v. Phillips Academy, 12 JIass. 455 ; Hawkes «. Pike, 105 Mass. 560 ; Simson v. Thornton, 3 Met. (Mass.) 275 ; Par- ker V. Hill, 8 Met. (Mass.) 447 ; Barnes v. Hatch, 3 N. H. 304 ; Derry Bank v. Webster, 44 N. H. 264; Jackson v. Phipps, 12 Johns. 418; Eathbun v. Eathbun, 6 Barb. 93 ; Manhattan Life Ins. Co. v. Crawford, 9 Abb. N. Cas. 365 ; Day v. Mooney, 6 Thomp. & C. 382 ; Green v. Kornegay, 4 Jones L. 66. Indeed in Ken- tucky it has been said that the presumption that a grantee will accept a deed because it is beneficial to him should never be carried so far as to be deemed equiv- alent to acceptance; acceptance is an essential fact, and unless the deed was cor- porally delivered to him or his authorized agent, proof of notice to him of the existence of the deed, with additional circumstances affording a reasonable pre- sumption of his assent, is needful. Commonwealth v. Jackson, 10 Bush, 424 ; Bell V. Farmers' Bank, 11 Bush, 34; s. p. Kingsbuiy v. Burnside, 58 lY.. 310; Krebaum v. Cordell, 63 ib. 23. But in Alabama, where mortgagor acknowledged the mortgage and left it with the officer for registration, and it was registered, the delivery was held perfect, although the mortgagee never received the deed, and did not even know of its existence till after mortgagor's death. Elsberiy v. Boykin, 65 Ala. 336. Often the distinguishing point is whether the party of the second part is claiming the benefit of the deed as delivered, or is repudiating it. Other decisions upon delivery arising out of the practice of recording have been : If the grantor in a deed not delivered causes the same to be recorded, this is a sufficient delivery to enable the gi-antee to hold the land as against the grantor (Kerr v. Birnie, 25 Ark. 225), but not as against grantor's creditors (Tharp v. Jarrell, 66 Ind, 52). Where a deed was executed with the usual formalities, acknowledged by the grantor before a judge, and put on record by the grantor's orders, but it was never delivered in fact, and it never was the grantor's intention to deliver it, except on a contingency that never happened, the deed was held void for want of delivery. Jones V. Bush, 4 Harr. (Del.) 1. There is no rule that the time of filing a deed for record is primd facie the time of its delivery. Bull v. Griswold, 19 111. 631. Where a deed has been obtained surreptitiously, and placed upon record by the (p) Shep. Touch. 1 ch. 4, p. 57 ; Tnpper v. Foulkes, 9 C. B. m. s. 797 ; 30 L. J. C. P. 214. '1^1 FOEMATION OF CONTRACTS. [BOOK I. and it has been held that circumstances alone may be equivalent to a delivery, where no actual delivery can be proved, {q) Where the party to a deed was shown to have acted under the instru- ment, and to have done a variety of things confirmatory of the contract, Lord Mansfield held that the acts so done amounted to an acknowledgment of the delivery of the deed, (r) If the at- testing witness is called and proves that he saw the defendant sign and seal the deed, and the plaintiff has possession of and produces the instrument, this is prima facie evidence of a deliv- ery to the plaintiff; (s) and if a party sends forth a deed to the world as his deed, he will be estopped, as against a party who has acted on the faith of the representation, from showing tliat the deed is not his deed, and that he never executed it. The mere placing of a seal to a written contract will not make the grantee, nothing short of ratification can give it vitality. Hadlock v. Hadlook, 22 III. 384. The fact that the grantor delivered the deed to the recorder to lie recorded, may tend to show fraud, but does not as a matter of law make the deed fraudulent, nor wiU it alone sustain a verdict of fraud. Ward v. Weliman, 27 Iowa, 279. A deed delivered to the registering officer and subsequently accepted by the grantee will take effect from the time of the first delivery as against grantor, but not as against persons who acquired an interest before the date of the actual acceptance. Bell v. Farmers' Bank, 11 Bush, 34. The delivery of a registercil deed subsequent to the date of it may be proved whenever justice requires. Fairbanks v. Metcalf, 8 Mass. 230 ; Harrison i). Phil- lips Academy, 12 Mass. 456. Possession of a deed by the grantee after it has been registered may be evidence of its delivery to him. Maynard v. Maynard, 10 JIass. 456 ; Dawson v. Dawson, Eice Ch. 243. Where a registered deed purporting to have been delivered is lost, the presump- tion is that it was delivered ; but this presumption is rebutted if the original deed is produced by the grantor, or if neither the grantor nor any person in his behalf was present at the attestation. Powers v. Russell, 13 Pick. 69. The sending of a deed by the grantor to a stranger, or the deposit of it in a public office, is not a delivery to the grantee, unless it is so sent or deposited for his use. Elsey v. Metealf, 1 Den. 323. The delivery of a deed to the grantee after it is recorded by the recording officer under the direction of the grantor, is a good delivery. Also a deed duly executed and registered, afterwards declared in conversation by the donor to be intended to take full effectjis to be considered, on claim by the donees after the donor's death, as having been delivered. Kemp v. Walker, 16 Ohio, 118. (?) Doe V. Knight, 5 B. & C. 689 ; (r) Goodright v. Straphan, Cowp. Thoroughgood's case, 9 Eep. 136 a.; 201; Co. Litt. 30; 2 Kolle, Abr. 26; Tupper V. Foulkes, 9 C. B. n. .=;. 797; Vin. Abr. Faits I'K.). 30 L. J. C. P. 214 ; Xenos v. Wickham, (s) Hall v. Bainbridge, 12 Q. B. L. R. 2 H. L. 296 ; 36 L. J. 0. P. 313. 699. 60 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 22 contract a deed. Thus, where an action of assumpsit had been brought upon certain articles of agreement, which, when pro- duced, were not only signed by the parties, but had a seal oppo- site to each signature, but it appeared that the seals had beeix affixed to the document through ignorance and by mistake, it was held that the placing of a seal opposite to the name of the party, though evidence of a deed and one of the formalities be- •longing to it, was not to be taken as conclusive ; and that if the parties did not mean to contract by deed, and had made use of the seal in ignorance of its legal effect, the contract would have the force and effect only of a common agi-eement. (;!) A contract, bad * as a deed, may yet under certain cir- [ * 22 ] cumstances, be good as a common agreement, (u) Delivery as an Escrow.^ — If a party signs and seals a deed, and places it in his drawer or on his table, and another person comes 1 In order to a valid delivery in escrow, the instrument must first be fully com- pleted. Hicks V. Goode, 12 Leigh, 479. In general, the delivery must be to a stranger to the transaction ; at least a delivery to the gi-antee (or to his agent) on conditions will not operate as an escrow. Foley v. Cowgill, 6 Blackf. 18 ; State v. Chrisman, 2 Ind. 126 ; "Ward v. Lewis, 4 Pick. 518 ; Massmann v. Holscher, 49 Mo. 87 ; Black v. Shreve, 13 N. J. Eq. 457 ; Ordinary v. Thatcher, 12 Vr. 403 ; Worrall v. Munn, 5 N. Y. 229 ; Lloyd v. Giddings, 7 Ohio, 375 ; Miller v. Fletcher, 27 Gratt. 403. , That one of several obligors may hold their bond after execu- tion by others, 'and in time deliver it with effect to bind all, is familiar ; but a bond cannot be delivered as in escrow to one of several co-obiigees. Moss v. Riddle, 5 Cranoh, 351 ; State v. Crisman, 2 Ind. 126 ; Madison, &c. Plank Road Co. i). Stevens, 10 Ind. 1 ; State Bank v. Evans, 3 Green L. 155 ; Blume v. Bowman, 2 Ired. L. 338 ; Perry v. Patterson, 5 Humph. 133. A grantor may, however, send the deed by the grantee, as a mere messenger, to a stranger, to be held in escrow (Jackson v. Sheldon, 22 Me. 569 ; Gilbert v. North American Fire Ins. Co., 23 "Wend. 43) ; and delivery of sheriff's deed to attorney of purchaser, in escrow, has been sustained. Jackson v. Catlin, 2 Johns. 248, 3 Am. Dec. 415; Robins v. Bellas, 2 Watts, 359. And delivery in escrow to an officer of a corpora- tion for the company has been sustained in some cases (Southern Life Ins. Co. V. Cole, 4 Fla. 359), though disallowed in others. Wight v. Shelby R. E. Co., 16 B. Mon. 4. Many cases show that no technical words or manner of delivery to the depos- itary are necessary; the word " escrow " need not be used; if the parties manifest an intent that the instrument shall not be deemed a present deed, this is enough. White 1). Bailey, 14 Conn. 271; Jackson v. Sheldon, 22 Me. 569; Fairbanks v. Metcalf, 8 Mass. 230; Jackson ■«. Catlin, 2 Johns. 248. If the parties meant to (t) Clement v. Gunhouse, 5 Esp. 82, (m) R. v. Ridgwell, 9 D. & E. 678 ; 6 83 ; Goodright v. Gregory, Lofft. 339 ; B. & C. 665 ; Hunter v. Parker, 7 M. & Davidson v. Cooper, 11 M. &. W. 778 ; W. 322. 13 M. & W. 343. 51 * 22 FORMATION OF CONTKACTS. [BOOK I. and takes it away, this is not a delivery ; (x) and if it should appear that the contract was delivered conditionally, and not with make final delivery to the grantee dependent on a condition, there is an escrow ; if they meant only to provide for custody of the deed during a delay of delivery, there is not: their intent, gathered from the whole transaction, is the criterion. Price V. Pittsburgh, &c. E. R. Co., 34 111. 13; Fester v. Mansfield, 3 Met.(Mass.) 412; State Bank v. Evans, 3 N. J. L. 155; Clark v. Gifford, 10 Wend. 310; Bra- man V. Bingham, 26 N". Y. 483; Hathaway v. Payne, 34 N. Y. 92, 107; Pruts- man V. Baker, 30 Wis. 644; 3 Washb. R. P. 301. The fact that the parties used the word " escrow " is not necessarily conclusive of the intent. Stinson v. Ander- son, 96 111. 373; James v. Vanderheyden, 1 Paige, 385. The condition on which a deed is placed in escrow may be expressed in writing or rest in parol, or be jjartly in both. Stanton v. Miller, 58 N. Y. 192. A mere explanation or promise that something wall be done does not constitute such a condition as is required. Ordinary v. Thatcher, 41 N. J. L. 403. Where the grantor retains control over the deed notwithstanding its being deposited with a third person for delivery by grantee on conditions, it is not a case of escrow. Campbell v. Thomas, 42 Wis. 437. The depositary takes the instrument as agent of both parties, equally bound to withhold it from the grantee so long as the conditions are not performed, and to pass it to him when they are. The grantee cannot, by obtaining possession of the deed without performance, acquire any right available to himself; title cannot pass until the conditions are performed. Carr v. Hoxie, 5 Mas. 60; Dyson v, Bradshaw-, 23 Cal. 528; Jackson v. Sheldon, 22 Me. 569; Rhodes v. School District No. 14, 30 Me. 110; Wheelwright v. Wheelwright, 2 Mass. 447, 3 Am. Dec. 66; Abbott V. Alsdorf, 19 Mich. 157; Carter t;. Mills, 30 Mo. 432; Townsend d. Hawkins, 45 Mo. 286; State Bank v. Evans, 3 N. J. L. 155; Jackson v. Rowland, 6 Wend. 666; Green v. Putnam, 1 Barb. 500; Stiles i). Brown, 16 Vt. 563; Smith v. South Royalton Bank, 32 Vt. 341; Everts v. Agnes, 4 Wis. 343; and see Carter v. Mc- Clintock, 29 Mo. 464. Delivery made by the depositary without exacting perform- ance of the condition does not render the instrument binding on the maker, at least not as towards the grantee (Clements v. Hood, 57 Ala. 459; Weed Sewing- Machine Co. v. Jeudevine, 39 Mich. 590; Cotton ti. Gregory, 10 Neb. 125); nor can the grantee, according to the better opinion, thus gain power to transmit title to a bona fide purchaser. This, however, is a disputed question. See Cotton t;. Gregory, 19 Am. L. Reg. N. .s. 694, and note by M. D. Ewell, ib. 697. The necessity of a formal delivery by the depositary to the grantee is also controverted; according to some of the decisions, for some purposes the grantee's rights become fully fixed by performance of the condition. Whether the depositary is the judge of the sufficiency of grantee's performance, see Hoig v. Adrian College, 83 111. 267. The effect of the depositary's delivery varies in different cases. Sometimes the deed takes effect from that date ; sometimes from the date of performance of con- dition; sometimes even from original delivery to the depositary: according to the nature of the transaction and the just rights of the parties. No .single rule on this subject can be derived from the cases. Simpson v. McGlathery, 62 Miss. 723, states the general doctrine on this subject thus : that a deeil delivered in escrow does not take effect so as to devest or invest title until the second delivery; that the second delivery derives all its force from the first, of which it is the con- (cc) Stanton v. Chamberlain, Ow. 95; Cro. E. 122. 52 CHAP. I.] THEIR NATURE AND CONSTITUENT PARTS. * 22 a view to its immediately taking effect as a deed, it is said to be delivered as an escrow, and an action cannot be maintained upon it until the condition has been performed, {y) But it does not follow that because a deed is to be executed in duplicate, its operation is suspended until both parts have been executed and interchanged. (2) Deeds Inter Partes and Deeds Poll. — When a deed is made between several persons, it is called a deed inter partes, and also an indenture. When it is made by one person alone, it is called a deed poll. The indenture, or deed indented, takes its name from the ancient practice of writing as many copies or parts of the deed as there were parties, on one large sheet of parchment, in order that each party might have his part, and then cutting them off in a notched or wavy line, by which means they could at any time be compared together and identified. The deed poll was so called because the paper was polled or cut even, there being, as there was only one party to the deed, no necessity for a counter- part. Contracts by Matter of Record are contracts acknowledged in open court before an officer of the court, and recorded in the presence of the party making the acknowledgment. A record thus made forms unimpeachable evidence of the contract, so that the contract is proved and established by the mere production of the record. Contracts by statutes merchant and statutes staple are contracts of record ; and so also are the recognizances entered into by witnesses to enforce their attendance to give evidence at a trial. Implied Contracts.9 — With certain exceptions, referred to here- inafter, men are free to make such contracts as they may deem snmmation; but when justice requires doing so, the second delivery will be made to relate back to the first, s. p. Harkreader v. Clayton, 56 Miss. 383 ; Jackson V. Rowland, 6 Wend. 636, 22 Am. Dee. 557. If the grantee refuses the depos- itary's tender of the deed, the latter thereafter holds it as agent of both parties, according to their respective rights. Adams v. Smilie, 50 Vt. 1. (;/) Parke, B., Bowker v. Burdekin, B. & Aid. 440; Murray v. Earl of Stair, 11 M. & W. 147; Gudgen v. Bessett, 6 2 B. & C. 82; Perk. sect. 137; "Watkins Ell. & Bl. 986; 26 L. J. Q. B. 36; Fur- v. Nash, L. R. 20 Eq. 262. ness V. Meek, 27 L. J. Exch. 34; Mil- (z) Kidner v. Keith, 15 C. B. N. s. lership v. Brookes, 5 H. & N. 797; 29 35. L. J. Exch. 369; Johnson v. Baker, 4 9 See Appendix, Vol. III. 53 » 23 FOllMATION OF CONTRACTS. [BOOK I. to be for their own interests, and the law will ascertain and carry into effect the intention of the parties. This intention is gen- erally expressed either by word of mouth or in writing ; and in such cases the contract is called an express contract. The inten- tion of the parties to any particular transaction may^ [ * 23 ] however, be gathered * from their acts and deeds, in con- nection with the surrounding circumstances, as well as from their words ; and the law therefore implies, from the silent language of men's conduct and actions, contracts and promises as forcible and binding as those that are made by expi'ess words or through the medium of written memorials. If one man sends to the shop of another for food or clothing or articles of merchan- dise, or enters an inn and takes refreshment, the law implies a contract or promise from him to pay a reasonable sum for the articles and refreshments received, though nothing has been said or stipulated concerning price or payment. If one man is employed to work for another, the law raises an implied promise from the employer to pay the ordinary hire or reward for the work ; and if a man borrow a horse, the law implies a promise from the borrower to the lender to feed the animal properly and sufficiently whilst it remains in his charge and possession. («) It has been said that " The only difference between an express and an implied contract not under seal is in the mode of sub- stantiating it. An express contract is proved by an actual agreement ; an implied contract by circumstances and the course of dealing between the parties. But whenever a contract is once proved, the consequences resulting from the breach of it must be the same, whether it be proved by direct or circumstantial evidence." (i>) Division of Implied Contracts. — Implied contracts have some- times been divided into inferred contracts, implied contracts properly so called, and constructive contracts. A contract is said to be inferred where the intention of the parties is not expressed in words, but may be gathered from their acts and from sur- rounding circumstances. In these cases the law enforces what it deems to have been the intention of the parties. (a) Handford v. Palmer, 5 Moore, 423; Morgan v. Eavey, 6 H. & N. 265; 75. 30 L, J. Ex. 131. (b) Marzctti v. Williams, 1 B. & Ad. 54 CHAP. I.] THE PARTIES TO CONTEACTS. * 24 It not unfrequently happens that in the course of carrying out a contract, circumstances arise which have not been contemplated by the parties, and, consequently, where no intention has been expressed by them, or can be inferred from their acts. In such cases the law prescribes their respective rights and liabilities according to the dictates of justice, — that is, of general expe- diency, — and according to what, it is presumed, their intention would have been had they had those circumstances in their con- sideration when they made the contract. In a third class of cases the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom circumstances have arisen which make it just that one should have a right and the other should be subject to a liability, * similar to the rights [ *24 ] and liabilities which exist in certain cases of express contract. Thus if one man has obtained money from another through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass, such money may be recovered back ; for the law implies a promise from the wrong- doer to restore it to the rightful owner, although it is obvious that this is the very opposite of his intention. Implied or con- structive contracts of this nature are similar to the constructive trusts of courts of equity, and, in fact, are not contracts at alL SECTION II. OF THE PARTIES TO CONTRACTS. Parties entitled to enforce Simple Contracts.^ — The interest in and right of action upon simple contracts is not confined to 1 Of advertisements that a reward will be paid to any one who may render a designated service — arrest an offender, find lost property, furnish information, or the like — it has been held that, as usually drawn, they embody a proposal, and that any person within the terms of the olTer may accept it, and his rendering the service, if prompted by the offer, is an acceptance, and if done before the offer has been publicly withdrawn, entitles him to payment on the ground of contract per- formed. Morrell v. Quarles, 35 Ala. 544 ; Ryer v. Stoekwell, 14 Cal, 134; Bull V. Talcott, 2 Root, 119 ; Gilkey v. Bailey, 2 Harring. 359 ; First National Bank 55 * 24 FORMATION OF CONTRACTS. [BOOK I. the parties to the contract ; (a) but the person for whose use or for whose benefit a simple contract has been entered into may I'. Hart, 55 111. 45 ; Stephens v. Brooks, 2 Bush, 137 ; Marking v. Needy, 8 Bush, 22 ; Freeman v. Boston, 5 Met. (Mass.) 56 ; Crawshaw v. Koxbury, 7 Gray, 374 ; Jenkins v. Kelren, ]2 Gray, 330 ; Janvrin v. Exetei', 4S N. H. 83 ; Furnian v. Parke, 21 N. J. L. 310 ; Cummingsii. Gaun, 52 Pa. .St. 484; Briggs v. U. S., 15 Ct. of CI. 48. An advertisement ottering a reward is a general offer, and its acceptance by one who gives the information or returns the article desii'ed, creates a valid contract on which he may maintain an action for the reward. Pierson v. Morch, 82 N. Y. 503. That he should give notice to the advertiser of his inten- tion to accejit and serve as desired, is not necessary. Wilson v. McClure, 50 111. 366 ; Har.sun u. Pike, 16 Ind. 140. To entitle a person to a reward offered for recovery of lost property, he must show a rendering of services after a knowledge of and with view of obtaining the offered reward ; linding and advertising the property without knowledge of the offer, do not entitle him to claim the reward, even though they bring the thing found back to the owner. Howland v. Lounds, 57 N. Y. 604. The service must have been induced by the offer ; at least it has been held that one who finds and restores lost property, gives information of an offender, &c. , before he had knowledge that a reward was offered, cannot after- wards claim it. Marvin u. Treat, 37 Conn. 96 ; Fitch v. .Sncdakrr, 38 N. Y. 248 ; Stamper D. Temple, 6 Humph. 113 ; but compare Eaglet). Snnth, 4 Houst. 293 ; Auditor v. Ballard, 9 Bush, 572 ; Kussell v. Stewart, 44 Yt. 170. An offer of a reward made by public advertisement merely, may be withdrawn in the same manner at any time before rights under it have accrued, and the fact that an individual who claims for services afterwards rendered under it did not know of the withdrawal when he rendered the service, is immaterial. Shuey v. United States, 92 U. S. 73 ; Harson v. Pike, 16 Ind. 140. AYhether an offer of this kind will be deemed revoked by lapse of a reasonable time without any service having been rendered under it, see Matter of Kelly, 39 Conn. 159 ; Loring v. Boston, 7 Met. (Mass.) 409. Persons not included in the terms of the offer cannot claim under it. Means v. Hendershott, 24 Iowa, 78 ; City Bank v. Bangs, 2 Edw. Ch. 95. For instances in which a claim for an advertised reward has been disputed on the ground that the claimant was not jiersonally within the offer, or was under official obligations which bound him to render the service without reward, see First National Bank v. Hart, 55 111. 02; Marking v. Needy, 8 Bush, 22; Pilee v. New Orleans, 19 La. Ann. 274; Pool u. Boston, 5 Cush. 219; Day u. Putnam Ins. Co., 16 Minn. 408 ; Ex parte Gore, 57 Jliss. 251 ; Gregg v. Pierce, 53 Barb. 387 ; City Bank v. Bangs, 2 Edw. Ch. 95 ; Stamper v. Temple, 6 Humph. 113 ; Davis V. Munson, 43 Vt. 676; Russell v. Stewart, 44 Yt. 170. A valid claim cannot be founded on anything short of a substantial performance of what the advertisement desires. Franklin v. Heiser, 6 Blatchf. 426 ; Williams ii. Unjted States, 12 Ct. of CI. 192 ; Shuey v. United States, 92 U. S. 73 ; Burke v. 'SVells, 60 Cab 218 ; Matter of Kelly, 39 Conn. 159 ; Cornelson v. Sun Mut. Ins. Co., 7 La. Ann. 345 ; Kincaid v. Eaton, 98 Mass. 139 ; Furman v. Parke, 21 N. J. L. 310 ; Jones v. Phcenix Bank, 8 N. Y. 228 ; Commonwealth v. Edwards, 10 Phila. 215; Clanton v. Yound, 11 Rich. 546. But see Besse t>. Dyer, 9 Allen, 151 ; Symnies v. Frazier, 6 Mass. 344 ; Breuuan v. Haff, 1 Hilt. 151, in which a per- formance disputed as only partial was held, under the circumstani'es, sufficient. (a) Carnegie v. Waugh, 2 D. & R. 273 ; Sutherland v. Pratt, 13 L. J. Ex. 277 ; Fitznjaurice v. Waugh, 3 D. & K. 246. 56 CHAP. 1.] THK PARTIES TO CONTRACTS. * 25 enforce it, although he is no party to it, and although the con- tract is not, in express terms, made with him, but with another on his behalf, provided the consideration moves from him. In the ordinary transactions of commerce a man may sell or purchase in his own name, and yet it does not follow that the contract is exclusively his, but the transaction is open to explanation ; and others who do not appear as parties to the contract are frequently disclosed, and step in to demand the benefit of it. (6) Except in the case of bills of exchange, promissory notes, and bills of lading, parties cannot annex to their contracts the inci- dent of negotiability and make them floating contracts payable to bearer. Where, therefore, the owner of a quantity of iron issued a note or undertaking in writing whereby he promised to deliver on and after a future day one thousand tons of iron to the party who should lodge the note or undertaking with him, it was held that the instrument was invalid ; for the law does not give a floating right of action to any one into whose hands such a writing may come, (c) But if a man publishes an ad- vertisement promising to give a sum of money to any person who shall give certain information, there is a contract with the person who performs the condition, {d) So if a man signs and circulates a promise or * agreement in writing [ * 25 ] to pay a certain specified sum of money to any person who shall do a particular act, and the writing is delivered to a party who does the act on the faith of the promise, such party is entitled to the money promised to be paid. Therefore, where the defendant, who was the master of a vessel, gave a written undertaking under his hand to pay £6 to any person who should advance to a sailor that sum, provided the sailor should sail in the defendant's sliip, then about to start, it was held tliat the plaintiff, who had advanced £6, partly in money and partly in goods, was entitled to recover that amount from the defendant, (e) (6) Per Lord EUenborough, Bicker- (d) Williams v. Carwardine, 4 B. & ton V. Burrell, 5 M. & S. 386, Ad. 621. (c) Dixon V. Bovill, 3 Macq. H. L. C. (e) M'Kune v. Joynson, 5 C. B. N. s. 16 ; Williams v. Lake, 2 Ell. & EIL 218 ; 28 L. J. C. P. 133. But see Wil- 349 ; 29 L. J. Q. B. 1. liams v. Lake, supra. 57 * 25 FOEMATION OF CONTRACTS. [BOOK I. Strangers to the Contract.' — If the act or service forming the cause or consideratiou for the promise to A be done or performed ' Numerous decisions have recognized the general doctrine, that in ». proper case, where a promise (founded on a consideration) has been made for the benefit of a third person, either he or the immediate promisee may maintain an action upon it. 3 U. S. Dig. 524, § 2443, 2444. Parsons thinks "it would be safe to consider this a prevailing rule " in this country (1 Pars. Contr. 468 ; quoted with approval in Hendrick v. Lindsay, 93 U. S. 143, 149). There nas been, however, great difference of opinion as to what are proper cases for the application of such rule, and many e-^cceptions and limitations have, been declared. The subject is involved in some confusion, and no single simple statement would be accepted throughout the country. Apparently, the tendency of modern cases is to allow suit by a stranger most readily where he is in some manner connected with the exchange of consents or the consideration ; as where the immediate promisee was his agent, or has been made so by his ratification ; where the promisee was in- debted to him, and payment to him will discharge that debt ; or the like. The rule, being partly one of procedure, is complicated in code States by enactments enabling the " real party in interest " in the cause of action, whatever it may be, to sue in his own name. For general discussions, see 1 Pars. Contr. 466-468 ; 3 Am. Dec. 305, note ; 9 Am. Dec. 155, note ; 12 Am. Dec. 693, note ; 1 Story Contr. 624-527; Met. Contr. 205-211; 1 Throop Verb. Agree. 408, note b; article by H. O. Taylor, 15 Am. Law Rev. 231; article 11 Cent. L. J. 161. Eecent decisions are : According to the preponderance of American authority, a third person for whose benelit a simple contract has been entered into, for a valuable consideration moving from the promisee, may maintain an action against the promisor ; or when sued in assumpsit by the promisor, he may plead, by way of set-off, the damages from the breach thereof. Lehow v. Simonton, 3 Col. 346 ; Green v. Richardson, 4 Col. 584. If a vendor and purchaser agree that purchaser shall discharge part of price by paying a debt of seller to a third pei'son, their promise, though not made directly to the creditor, enures to his benefit. He, after accepting it, may pursue any appropriate remedy for enforcing it, and his resorting in his own name to any such remedy, such as filing a bill to declare his debt a lien on the lands, is an acceptance. Carver v. Eads, 65 Ala. 190. A promise by one to another that he will pay the indebtedness of the latter to a third person, may be enforced in equity by such third person, though he was not a party to the agreement. And after the acceptance of such promise by the creditor, he may maintain an action at law thereon. Until such acceptance by him, however, the parties to the agreement may rescind it. Davis v. Calloway, 30 Ind. 112. Where A owes B, and B owes C, and all agree that A shall pay C what A owes B, C will be entitled to recover the same from A. KaiT v. Porter, 4 Houst. 297. A consideration moving from a promisee to a third person, and unknown to the promisor, will not support an action on the promise. EUis v. Clark, 110 Mass. 389. See Rogers v. Stone Co., 130 Mass. 581. Upon an affirmative, unconditional promise, supported by a sufficient consid- eration, to pay to a third person a debt of the promisee, the latter may maintain an action against the promisor, immediately on a default in payment, to recover the amount agreed to be paid, and without waiting till the promisee has been him- 58 CHAP. I.] THE PAKTIES TO CONTRACTS. * 25 by some third party, and not by A himself, nor at his instance or by his procurement, A is said to be a stranger to the consider- self compelled to pay. The fact that by such promise the promisor becomes liable to a direct action by the creditor, does not discharge his liability to an action by the promisee. Meriani v. Pine City Lumber Co., 23 Minn. 314. One for whose benefit a promise is made upon a sufficient consideration may sue upon it, though not privy to the contract. Meyer v. Lowell, 44 Mo. 328 ; Beardslee v. Morgner, 4 Mo. App. 139 ; Barbaro v. Occidental Grove, No. 16, ib. 429. The right of a third person for whose benefit a promise is made, to sue upon it, is not affected by the question whether the promise is in writing. Raum v. Kalt- wasser, 4 Mo. Ap]i. 673. "Where A and B contract, the fact that had an interest therein by reason of an agreement between him and A, to which B was not a party, does not make C a proper party plaintiff in an action on the contract against B. McKnight v. Watkins, 6 Mo. Apj). 118. An action will lie on a written promise made by the defendant to a third jierson for the benefit of the plaintiff, without any consideration moving from the plaintiff to the defendant. Joslin v. N. J. Car Spring Co., 36 N. J. L. 141. A promise for a valid consideration gives no right of action to a third person who is neither privy to the contract nor to the consideration, unless it was made for his benefit and he was the party intended to be benefited ; the fact that a benefit would enure to him from performance is not sufficient. Simson v. Brown, 68 N. Y. 355. When A, for a valuable consideration, agrees with B to pay his debt to C, C can enforce the contract against A. Campbell v. Smith, 71 N. Y. 26. So held of a mortgage debt. Hand v. Kennedy, 45 N. Y. Superior Ct. 385. A third person may maintain an action in his own name upon a contract made expressly for his benefit, where his release would be a sufficient discharge to the promisor, but not where it would leave the promisor liable to an action by the other contracting party. Kountz v. Holthouse, 85 Pa. St. 235. If a person makes an agreement with a railway company, by which he buys all its property and credits and assumes to pay all its debts, a creditor of the corpo- ration may sue such purchaser directly for his demand. Snell v. Ives, 85 111. 279 ; but see to the contrary, Mississippi Central E. R. Co. v. Southern R. R. Assoc, 7 Baxt. 595. When one person, for a valuable consideration, engages with another (whether by simple contract or by covenant under seal) to do some act for the benefit of a third person, the latter may maintain an action against the promisor for breach of the engagement. After knowledge of and assent to such engagement by the person for whose benefit it is made, his right of action on it cannot be affected by a rescission of the agreement by the immediate parties thereto. Bassett v. Hughes, 43 Wis. 319. A stranger cannot maintain an action on a contract unless the promisee was his agent or he was the trustee of the promisee. McCarteney u. Wyoming Bank, 1 Wy. T. 382. See also Shattuck v. Smith, 5 Oreg. 125 ; Hirschfelder v. Mitchell, 54 Ala. 419 ; Johnston v. United States, 13 Ct. of CI. 217 ; Egan v. Thomson, 57 How. Pr. 324 ; Baum v. Kaltwasser, 4 Mo. App. 573 ; Loch v. Weis, 64 Ind. 285 ; National Sav. Bank v. Ward, 100 U. S. 195 ; McCarteney v. Wyoming Bank, 1 Wy. T. 382. In three recent cases attempt was made to extend the doctrine that a third 59 *25 FOEMATION OF CONTRACTS. [BOOK I. ation, and canuot enforce the contract ; (/) but if the act or ser- vice has been rendered to B at the instance and request, and through the instrumentality and procurement of A, the consid- eration moves from A so as to enable him to enforce the prom- ise. (V/) Where the defendant promised the father of the plaintiff that if the plaintiff' would marry the defendant's daughter, the defendant woiild pay to the plaintiff £20, and the marriage was celebrated, and the plaintiff claimed the £20, and it was objected that the promise was not made to him, but to his father, the court held that the action was properly brought by the plaintiff, wlio had performed the meritorious act forming the consideration for the promise, (h) But where, after the marriage, the fathers of the husband and wife agreed together that each should pay a sum of money to the husband, and that the latter should have full power to sue for the money, it was held, nevertheless, that person for whose benefit a contract was made may enforce it, so as to enable indi- vidual inhabitants of a municipality to sue for breach of a contract made by the corporation. Sutetantially the facts were, that a private corporation, organized to supply the inhabitants of a city with water, contracted with the municipal authorities to furnish water for the uses of the fire department. The water com- pany failed to furnish the supply required by the contract, and, in consequence, the fire department was unable promptly to extinguish a fire which occurred. An individual owner of property burned then sued the company for his loss. The courts alike denied such right of action, substantially on the ground that there is no privity of contract between such an aqueduct company and individual citizens. The contract obligation of the company is toward the munieijial corporation, which alone can take steps to enforce the agreement. The claim of an individual resident to the exertions of the fire department toward extinguishing a fire rests, like other benefits enjoyed under city government, on public duty between that government and the people. It is not founded on contract, and the fact that the city may have been embarrassed in discharging its public duty by breach of a contract between it and another person, does not enable the sufferer to lay hold of such breach and enforce it in his own name. Kickerson v. Bridgeport Hy- draulic Co., 46 Conn. 24 ; Davis v. Clinton Wati'r "Works Co., 54 Iowa, .59 ; Foster V. Lookout Water Co., 3 Lea, 42 ; and see 22 Alb. L. J. 124. (/) Price V. Easton, 4 B. & Ad. 434 ; & E. 452; Martyn v. Hind, 1 Cowji. 437 1 N. & M. 303 ; Crow v. Eogers, 1 Str. 1 Doug. 142. 592 ; Bourne v. Mason, 1 Ventr. 6 ; 2 {h) Provender v. Wood, Het. 30 Keb. 457. Ag.icio v. Foibes, 14 Moo. P. C. 171 (g) Curtis v. Collingwood, 1 Ventr. post, p. * 43 ; and see Garrett v. Handley. 297 ; Lampleigh v. Braithwaite, 1 3 B. & C. 462; 6 D. & E. 319; 4 B. & Smith's L. C. 135, 5th ed.; Hob. 105 ; C. 664; 7 D. & R. 144; Thatcher v. Townsend v. Hunt, Cro. Car. 480; Den- England, 3 C. B. 262. man, C. J., Eastwood v. Kenyon, 11 Ad. 60 CHAP. I.] THE PARTIES TO CONTRACTS. * 26 the husband, not being a party to the agreement, could not enforce it. (i) If there is a benefit to the defendant and a loss to the plaintiff directly resulting from the defendant's promise in favor of the plaintiff, there is a sufficient cause or consideration moving from the plaintiff to enable the latter to maintain an action upon the promise. Where Sir Edward Poole being about to cut down £1,000 worth of timber on his estate for the purpose of portioning * his daughter Grisel, the eldest son and heir [ * 26 ] promised Sir Edward that if he would not fell the tim- ber, he, the son, would pay his sister Grisel £1,000, and Sir Edward, confiding in his son's promise, allowed the timber to stand, and after his death the land, with the timber growing thereon, descended to the son, who then refused to fulfil his promise, whereupon the daughter and her husband brought an action against him, it was held that the action was well brought, for the son had the benefit of having the timber, and the daughter had lost her portion by reason of the brother's promise, (k) So ■where Eookwood being about to charge his lands witli £40 per annum to each of his younger sons for their lives, the eldest son desired him not to charge the land, and promised to pay the younger sons duly the £40, and Eookwood, confiding in this promise, neglected to make the provision he had intended for his younger children out of tlie land, and after his death the eldest son refused to fulfil his promise, whereupon the two younger sons brought an action for the recovery of the money, the whole court held clearly tliat the action was well brought, and that it was a good consideration; for the defendant's land would have been charged with the rents but for his promise to pay the money to the plaintiffs, (l) In these cases the consideration indirectly moves from the party in whose favor the promise is made. It was formerly held that the near relationship of parent and child extended to the child an interest in a contract entered into (i) Tweddle v. Atkinson, 1 B. & S. ceive," said Lord Mansfield, "how a 393; 30 L. J. Q. B. 265. doubt could be entertained in the case (k) Button V. Poole, 2 Lev. 210; 1 of Dutton v. Poole." Martyn v. Hind, Vent. 318, 334; T. Jones, 102; affirmed sitpra. in error in the Exchecjuer Chamber, T. (I) Rookwood's case, Cro. Eliz. 164 ; Eaym. 392. "It is difficult to con- and see Story's Comni. on Eq. Jur. s. 64. 61 * 27 FORMATION OF CONTRACTS. [BOOK I. by the parent in its behalf and for its benefit, that the parent might be considered as the mere agent of the child in whose be- half and for whose benefit the contract was made, and that the latter might consequently maintain an action upon it. (m) Thus where the defendant promised a physician that if he succeeded in effecting a particular cure, he, the defendant, would give a cer- tain sum of money to the physician's daughter, and the daughter brought the action, it was adjudged maintainable ; " for the near- ness of the relation gives the daughter the benefit of the consid- eration performed by the father." (n) But these cases could not now be supported at law, (o) and in equity a third person cannot enforce a stipulation made by another in his favor, and for which tliat other has given valuable consideration, with the [ * 27 ] * view of benefiting such third person, unless his condi- tion in life has been altered by and in consequence of the stipulation, (p) Where the uncle and guardian of an infant, at the request of the infant, delivered ^12 to J. S. to educate the infant, and in consideration of this J. S. promised to educate the infant and to pay the infant £12 when he came of age, it was held that the latter was the proper party to maintain a-n action for the non-payment of the £12. (q) An action will not lie against a railway company, as carriers of passengers for hire, at the suit of a master, for a personal injury sustained through their negligence by his servant, whereby the master lost the benefit of the services of the servant ; the contract out of which rose the duty to carry safely being a contract between the company and the servant, (r) So also where a master sent forward his servant by train with his portmanteau, and it was delivered by the ser- vant and accepted by the company as part of the servant's lug- gage, nothing being said as to the ownership of the portmanteau, it was held that no action lay against the company by the master for the loss of his portmanteau, on the ground that the contract (?») Diitton V. TooIp, 2 Lev. 211 ; (o) Tweddle v. Atkinson, ante, p. Hardr. 321 ; Thomas v. , Styles, *25. 461; Bafeild v. CoUard, Aleyn, 1; Rip- (p) Spence's Equit. Jur. vol. 2, pp. pen V. Norton, Cro. Eliz. 849, 881. 280-286. (ii) Bourne v. Mason, 1 Ventr. 6 ; ((?) Odham v. Bateman, 1 Rolle Abr. Levet V. Hawes, Cro. Eliz. 619, 652 ; 31, pi. 8. Het. 176; Eainerv. Mortimer, IBrownl. (r) Alton v. Midland Ey. Co., 19 C. 40. B. N. s. 213 ; 34 L. J. C. 1?. 292. 62 CHAP. I.] THE PARTIES TO CONTRACTS. * 28 was between the company and the servant, (s) And where a telegraph company negligently missent a message containing an offer for a cargo of ice to the vendor, in consequence of which the vendor incurred expense, it was held that he could not sue the telegraph company, because their contract was with the sender of the message and not with the receiver, although, if the sale had been effected, the vendor would, by the course of the trade, have been bound to repay the sender the cost of the message, (t) Parties to Contracts -with Bankers, 'Warehousemen, and Wharf- ingers, — If money is sent to a banker for the payment of certain debts, the consideration for a promise by the banker to pay over the money, pursuant to the directions he has received, is said to move from the creditor whose particular debt is to be paid and who is the object of the remittance ; it being considered that the debtor is the agent of the creditor, and that the money is paid indirectly to the banker by the latter, (u) But in all cases where money is sent to one person to be paid by him to another, to enable the person who is the object of the remittance to maintain *an action against the remittee to recover the [ * 28 ] amount transmitted to him, there must be au express promise or assent on the part of the latter to pay over the money to the former, or to hold it to his use, inasmuch as the mandate is revocable so long as no such assent, promise, or engagement has been given or entered into, (x) When, however, the assent has been given and the attornment made, the order to pay the money, if founded upon a precedent debt or other good consider- ation, becomes irrevocable ; (y) the creditor looks no longer to the (s) Becker u. The Great Eastern Ey. Fisher v. Miller, 7 Moore, 537; Baron Co., L. E. 5 Q. B. 241. But it is diffi- v- Husband, 4 B. & Ad. 611; Howell v. cult to understand why the plaintiff was Batt, 5 B. & Ad. 504; 2 N. & M. 381 ; not entitled to recover the value of. the Wedlake v. Hurley, 1 C. & J. 83; Grant portmanteau, on the ground that it was v. Au.sten, 3 Price, 68; Brind v. Hamp- his property. shire, 1 M. & W. 373; Hill v. Eoyds, L. (t) Playford v. United Kingdom Tele- E. 8 Eq. 292. graph Co., L. E. 4 Q. B. 706; 38 L. J. (y) Winter t). Foweracres, 2 EoU. Eep. Q. B. 249. 39, 40; Eobertson v. Fauntleroy, 8 (w) Lilly V. Hays, 5 Ad. &. E. 548; Moore, 10; Atkin v. Barwick, 1 Str. 165; Moored. Bushell, 27 L. J. Ex. 3; Noble Hodgson v. Anderson, 3 B. & C. 842; V. Nat. Disct. Co., 5 H. & TST. 228; 29 5 D. & E. 744; Walker i). Eostron, 9 M. L. J. Ex. 210. & W. 411; Griffin v. Weatherby, L. E. (x) Williams v. Everett, 14 East, 597; 3 Q. B. 753. 63 * 28 FORMATION OF CONTRACTS. [BOOK I. security of his original debtor, but relies on the assent of the remittee, which cannot be retracted, and is entitled to maintain an action against him for the amount received, (z) But if the amount transmitted be a mere voluntary gift or donation founded upon no precedent consideration, debt, or duty, the authority may be revoked at any time before the money is actually paid over by the remittee, (a) just as money, when paid by mistake to an agent, and placed by him to the account of his principal, but not paid over, may be recovered back by the party who has inadvert- ently transmitted it. (b) Subject to these qualifications, some of the old cases in Eolle's Abridgment, where it has been held that if .£20 be delivered to B to pay over to C, C can maintain an action against B to recover this money, or that when goods are given by A to B under an agreement that B shall pay £20 to C, that becomes a debt due to C, may still be considered good law. (c) Warehousemen, wharfingers, and bailees of goods, stand in the same situation as bankers and depositaries of money ; and when they have accepted a delivery order presented to them by a purchaser, they become the bailees of the party mentioned in such order, and are liable to him upon their promise to hold the goods on his account aud at his disposal, (d) Parties entitled to enforce Contracts under Seal.^ - — As a con- tract under seal requires no consideration to support it, the com- 1 The covenantee is the proper plaintiff in an action on a covenant under seal ; a stranger is not allowed to sue on a contract under seal on the mere ground that it was made for his Ijcnefit. Hendrick v. Limlsay, 93 U. S. 143, 149 ; Douglass v. Branch Bank, 19 Ala. 6.59 ; Moore v. House, 64 111. 162 ; Haskett v. Flint, 5 Blackf. 69 ; Yickery v. Walker, STiiith, 78 ; Montague v. Smitli, 13 Mass. 396 ; Bobbins v. Ayres, 10 Mo. 538 ; Howe v. How, 1 N. H. 49 ; Smith i'. Emery, 12 N. J. L. 53 ; Hornbeck v. "Westbrook, 9 Johns. 73 ; Oardner v. Gardner, 10 Johns. 47. But the above rule is not carried so far as to forbid that covenants running with land should be sued by subsequent purchasers of the land. The authorities substantially agree that when one purchases real estate incum- bered by a mortgage, and agrees to pay the mortgage debt as a part of the con- sideration of the deed, the promise may be enforced by the mortgagee. In such cases the purchaser merely agrees to pay his own debt to a third person, the mortgagee, and he, by an equitable subrogation, stands in the place of the promisee. (z) Best, C. J., Gibson v. Minet, 9 (c) Starkey v. Mylne, 1 R. Abr. p. 32, Moore, 36. pi. 13; Disborue v. Denabie, ib. pp. 30, (a) Lyte v. Peny, Dyer, 49, a, b, p. 7; 31, Z, pi. 5. Taylor v. Lendey, 9 East, 54. (d) Bryans v. Nix, 4 M. & W. 791. (b) Buller v. Harrison, 2 Cowp. 565. 64 GHAP. I.] THE PARTIES TO CONTRACTS. * 29 nion law regarded only the instrument itself ; and whenever a deed was expressed to be made between certain persons named in the premises of the instrument, or described therein as the contracting parties, those persons only and their privies claiming * through them by blood, representation, or [ * 29 ] otherwise, could take advantage of it by way of action, (e) It mattered not that the deed was made for the exclusive benefit or use of other individuals named therein, and contained cove- nants with them for the performance of certain duties ; if they had not been made parties to the contract, they could not sue thereon, although they might have sealed and delivered the deed in common with those who were formally described as the par- ties to the instrument. (/) And although the 8 & 9 Vict. c. 106, enacted that after the 1st of October, 1845, an immediate estate or interest, and the benefit of a condition or covenant respecting any tenements or hereditaments, might be taken, although the taker thereof was not named a party to the same indenture, {g) this enactment was held only to apply to cove- nants respecting any tenements or hereditaments ; and, there- fore, where a composition deed was expressed to be made between " the several persons whose names and seals are subscribed and affixed in the schedule hereunder written, being creditors exe- cuting these presents as parties of the first part " and other par- The mortgagee may also sustain an action whenever the circumstances are sucli as to justify the conclusion that the promise was made for his benefit. Where, however, the conveyance in which the grantee assumes a prior mortgage is itself a mortgage, the grantee owes the grantor no debt which he can promise to pay to a prior mortgagee, and if he makes such a promise, it is ordinarily a mere agreement to advance money to pay the prior mortgage, or rather an agreement with the mortgagor to purchase it, and there is little room for the conclusion that the promise was made for the benefit of the prior mortgagee. Garnsey v. Eogers, 47 N. Y. 233, and Araauld v. Griggs, 29 N. J. Eq. 482, show that such a promise contained in a mere mortgage imposes upon the promisor no absolute continuing obligation which can be enforced by the prior mortgagee ; he, however, may ac- quire and enforce the rights of the mortgagor in the promise. Bassett v. Bradley, 48 Conn. 224. For breach of a bond by A and B to C, to take care of D as long as she shall live, C or his legal representatives, and not D, is the proper party to bring suit. Sandusky v. Keal, 2 Bradw. 624 ; compare Scott v. People, ib. 642. / (c) Chesterfield andMidland Silkstoue &C. 355; Lord Southampton ir. Brown, 'Colliery Co. v. Hawkins, 3 H. &C. 657; 6 B. & C. 718; Metcalfe ■». Bycroft, 6 34 L. J. Ex. 121. M. &S. 75. (/) Gilby V. Copley, 3 Lev. 138; (g) See the 7 & 8 Vict. c. 76, sect. 11, Berkeley v. Hardy, 8 D. & K. 102; 5 B. repealed by 8 & 9 Vict. c. 106, sect. 1. VOL. I. 5 G5 * 30 FORMATION OF CONTRACTS. [BOOK I. ties, it was held that creditors who did not execute the deed were not parties to it, and could not take advantage of the covenants contained therein, altliough they were expressed to be made with the parties of the first part and all other credi- tors, (/i) But where a similar deed was expressed to be made with all the creditors, it was held that all were parties, and could sue on the covenants which were expressed to be made with each creditor severally, (i) When a deed was not made recipro- cal between parties of the one part and parties of the other part, but was expressed to be made generally " to all " in the nature of a deed poll, then, if any one or more persons contracted or covenanted therein with a stranger, the latter might bring an action upon the deed against the parties so covenanting and con- tracting, provided they had duly sealed and executed the instru- ment, as in the case of an ordinary bond or obligation, where "fifty persons may be bound to one who is no party to the instrument, and all are liable to an action at his suit." (k) When there was no formal commencement to a deed describ- ing who were the parties to it, and whose deed it was, it [ * 30 ] was held to * be the deed of tliose who were named in the instrument as the contracting parties, and who put their seals to it. (J) But they must have been named or desig- nated in the body of the deed ; foT no person could maintain an action upon a contract under seal unless he was named therein, either by his own name or by some acquired or adopted name, or was otherwise described therein ; {711) and the contract or covenant must in express terms have been made with him. (n) Trustee and Cestui que Trust. — It was a fixed rule of law tliat the action upon a contract under seal, whether such contract was a deed inter partes or a deed poll, must be brought by the party with whom the contract was in terms made, and not by the per- (h) Chesterfield and Midland Silkstone {/c) Cooker v. Child, 2 Lev. 74. Colliery Co. v. Hawkins, 3H. & C. 677; {I) Nurse v. Framton, 1 Ld. Eaym. 34 L. J. Ex. 121; Gurrin v. Kopera, 3 28. H. & C. 694; 34 L. J. Ex. 128. (m) Maiighauu. Sharpe, 17C. B. N. s. (!) Gresty II. GUison, 4 H. & C. 28; L. 443; 34 L. J. C. P. 19. E. 1 Ex. 112; 3,5 L. J. Ex. 74; Reeves (n) Sund. Marine Ins. Co. v. Kearney, V. Watts, L. E. 1 Q. B. 412; 35 L. J. 16 Q. B. 935; 20 L. J. Q. B. 421. Q. B. 171; McLaren v. Baxter, L. R. 2 C. P. 559. 66 CHAP. I.] THE PARTIES TO CONTRACTS. * 31 son on whose behalf or for whose benefit it had been made, (o) In those cases the party to whose use or for whose benefit the contract had been entered into had a remedy in equity against the person with whom it was expressed to be made. The Court of Chancery deemed the latter a trustee for the former, and would compel him to execute his trust according to the apparent inten- tion of the contracting parties. Hence the one was technically said to have the legal and the other the equitable interest in the contract. When, however, no express promise or engagement was entered into with some person or persons in particular, the case was different. If, for example, a man by writing, sealed and delivered, acknowledged generally that he had received a partic- ular sum of money to the use of A, this made him a debtor to A to the amount specified, {p) A bill or receipt under seal was couched in the following terms : " Received of A X40 to the use of B & C, equally to be divided between them, to be repaid at such time as shall be most to the profit of B & C;" and it was held that this was an engagement with B & C to pay the money to them whenever they required it, and that B & C might con- sequently maintain an action for the recovery of the £40. {q) These distinctions have, however, become of less consequence since the passing of the Supreme Court of Judicature Act, 1873, by the operation of which the beneficial interests arising under deeds will be recognized in every court as amply as they were formerly in the courts of equity. Covenantees ■who have omitted to execute the Deed. — It is not in general necessary that those who have been made parties to a deed * inter partes should execute the deed [ * 31 ] to be enabled to sue thereon, (r) Neither need a gran- tee under a deed execute, provided he has been made a party to the deed; for the law presiimes his assent to the grant in the absence of an express disclaimer, (s) Where real prop- erty, therefore, is conveyed to trustees, parties to a deed, it is (o) Offly V. Warde, 1 Lev. 235 ; Bar- (r) Rose v. Poulton, 2 B. & Ad. ford V. Stuckey, 5 Moore, 23; 2 B. & B. 830. 333. (s) Townson v. Tickell, 3 B. & AM. (p) Core V. Woddye, Dyer, 23, a. 31. The disclaimer of a grant of realty (y) Shaw u. Sherewood, Cro.Eliz. 729; should he made hy deed. Fitz. Ah. Sund. Marine Ins. Co. v. Kearney, supra. Joint-Tenancy, pi. 9. 67 * 31 FOEMATION OF CONTRACTS. [BOOK I. not necessary for them to execute, as the legal estate forth- with vests in them, unless they disclaim the grant ; and if one of the trustees renounces, the whole property vests in those who accept the trust, (t) When, however, the execution of the deed by one of the parties is necessary to create or trans- fer some estate or interest, the creation or transfer of which forms the foundation or consideration for the covenants and stipulations contained in the deed, the party neglecting to exe- cute cannot then maintain an action npon the covenants. («) Where tenant for life and remainder-man are parties to an inden- ture whereby they (so far as they legally can and may, accord- ing only to their respective estates and interest) demise their estate for a term of years, and the lessee enters into possession, the tenant for life may sue him for breach of covenant, although the indenture has not been executed by the remainder-man. («) Parties liable upon Simple Contracts.^ — A person who signs a promissory note or an undertaking on behalf of another, (y) or 1 The rule has heen deemed ele^nentary that, in order to bind one as principal by a written contract negotiated and executed by an agent, the instrument must purport to be the contract of the principal, and be signed in the principal's name by the agent, though the particular form in -vvhich these things appear is not material. A written contract which, though negotiated by an agent, may yet be, so far 33 its terms show, his personal contract, and which he signs with his own name, adding only " agent, &c.," or the like, even though for the purpose of pre- venting an individual liability, binds him personally, and not the principal; the qualifying words operate only as a description of the person, a means of identi- fying the name subscribed. But modern decisions favor allowing an inquiry to whom the credit was really given, or who was considered the actual party, rather than blindly following the form. It is not always deemed indispensable that a simple contract, in order to bind the principal, should be executed formally in his name and as his act ; but when the instrument fairly evinces that the person mak- ing it acts only as agent, and intends to bind the principal and not himself, this is often treated as sufficient. Fitch, Real Estate Agency, 94. A written contract, not under seal, is binding on the principal in whatever form made or executed, if the principal's name appear in it, and the intention to bind him be apparent. Kandall v. Snyder, 1 Lans. 163. The practitioner should examine carefully the course of decision in his State. See U. S. Dig. I'rincipal and Agntt, § 854-916, 1013-1088; ib. SWs . Dunsterville, 4 T. R. 313. (I) Co. Litt. 258 n. ; Anon., Moore, (o) Brady v. Tod, 9 C. B. N. s. 592; 95 * 53 FORMATION OF CONTRACTS. [BOOK I. altliough a vendor who employs an agent to sell gives the latter no authority to warrant, yet, if the agent does warrant, and thereby obtains a largely enhanced price, which never could have been procured if the warranty had not been given, it seems inconsistent with all ordinary principles of law and justice to allow the principal to retain the money and repudiate the war- ranty by which it was obtained. Finding that the agent had exceeded his authority by giving a warranty, the principal is doubtless entitled to repudiate the transaction altogether ; but if he receives the money, and refuses to return it after he has had notice of the warranty, he surely ought to be held to have ratified and adopted the warranty, {p) If a person puts goods into the custody of another whose common business it is to sell, he thereby confers upon him an authority to do all that is necessary and usual to be done to obtain a purchaser ; {q) and, therefore, if the servant of a horse- dealer with express directions not to warrant does war- [ * 53 ] rant, the master is * bound, because the servant having a general authority to sell is in a condition to warrant, and the master has not notified to the world that the general authority is circumscribed, (r) Here the maxim respondeat su- perior applies ; and the principal has his remedy against the agent for his misconduct, (s) Where a goldsmith's apprentice sold an ingot of gold and silver upon a special warranty that it was of the same value per ounce with an assay then shown, and it appeared that he had forged the assay, and that the ingot was made out of a lodger's plate, which he had stolen, it was held that the master was answerable for the fraud of the appren- tice, {t) on the ground that the sale took place in the course of business in the master's shop, {u) Where the owners of a vessel, which had once been classed A 1 at Lloyd's, authorized 30 L. J. C. P. 223; Udell v. Atherton, (r) Bayley, J., Pickering v. Busk, ante, p. * 51, qualifying Alexander v. 15 East, 45; Howard v. Sheward, L. E. Gibson, 2 Campb. 556 ; Helyear v. 2 C. P. 148; 36 L. J. C. P. 42. Hawke, 5 Esp. 71. . (s) Ld, Kenyon, C. J., Fenn v. Har- (») Parke, B., Cornfoot v. Fowke, 6 rison, 3 T. R. 760. M. & W. 373; Hern v. NichoUs, ante, (t) Grammar v. Nixon, 1 Str. 653. p. *51; Amoryi). Delamirie, 1 Str. 505. (tt) Jervis, C. J., Coleman j). Riches, (q) Dingle i)..Hare, 7 C. B. N. s. 145; 16 C. B. 115. 29 L. J. G. P. 148. 96 CHAP. I.'] THE PARTIES. ' * 54 their agent, by power of attorney, to charter the vessel or to em- ploy her as a general ship on any voyage, on such terms and in such manner in all respects as he should think proper, and gen- erally to represent the owners in relation to her management or sale as fully as if the owners were personally present, and to do all things necessary for that purpose though the same were not especially mentioned, it was held that the agent had authority to enter into a charter-party with a warranty that the ship was at the time of the charter-party, A 1 at Lloyd's, though she wa& not so described in the power of attorney, and though she had ceased to be so classed when the power was given, (x) If an agent employed by the indorsee of a bill to get it dis- counted warrants the bill to be a good bill, and receives cash for it on the strength of the warranty, and hands over the money to his principal, and the bill turns out to be a piece of worthless paper, the principal cannot retain the money, (y) It was his own fault, as Lord Holt has observed, to repose a trust in un- worthy hands, and he ought not to be allowed to derive a profit from the misconduct of his owji servant to the prejudice of an innocent purchaser, (s) Representations by Agents not amounting to a Warranty. — - It is not every affirmation and representation which will amount to a warranty. If the fact concerning which the representation is made lies as much within the knowledge of the one party as the other, and the agent making the statement merely says what he * believes to be true, there is no warranty [ * 54 ] on the part of the agent of the truth of what he states ; it is understood only, under such circumstances, that he does not wilfully state that which he knows to be false, either to mislead or to lull to sleep the vigilance of the other contracting party. And if there is, under such circumstances, a defect unknown to the party making the statement, and which the other party had as good means of discovering as the agent himself, the rule of daveai emptor applies, (a) A servant, serving in a shop, and (x) Eouth V. Macmillan, 33 L. J. 24 L. J. C. P. 125; Cornfoot v. Fowke, Ex;: 38. ' ' 6M.&W. 381. (^) Fenn w. Hai-risori, 3 T. R. 177. (a) Fuller v. Wilson, Wilson v. , (?) Coleman u.' Riches, 16 C. B. 120;' Fuller, 3 Q. B. 58, 72;- Callins v. Evans, - 5ib. 828. TOL. I. 7 9';* • 55 FORMATION OF CONTRACTS. [BOOK I. demanding only the ordinary market-price of the wares he sells, may be asked this and that question as to the fitness of the dif- ferent articles for particular purposes, and his answers to such queries would, in most instances, be considered the mere expres- sion of his own individual judgment and opinion, given by way of guidance and advice to the purchaser, and not as warranties binding the principal to the truth of his representations. Representations forming no part of the Contract with the Prin- cipal. — In order to charge the principal, it must not only be shown that the representation was made at the time the contract was entered into, but that it formed part of the foundation on which the contract rests, (b) Therefore, if an agent employed by his principal to find parties willing to contract, and then to send them to the principal to conclude the bargain with him, makes in the course of conversation with them statements and representations respecting the subject-matter of the contract which are not afterwards included in the contract entered into with the principal himself, the latter will not be bound by them, (c) Thus, where a house-agent, on going to show a house, was asked if there was anything objectionable about the house, to which he replied, " Nothing whatever," and, after this conver- sation, the parties differed about the rent, and the matter was then referred to the principal, and a contract for the letting and hiring of the house was subsequently entered into with the prin- cipal himself, which contract made no mention of the previous representation of the agent, it was held that the principal was not bound by the representation, (d) Purchases by a Servant in the Name of his Master. — If a man sends his servant with ready money to buy goods, and the servant buys upon credit, the master is not chargeable. But if the servant " usually buys for the master upon tick, and the ser- vant buys some things without the master's order, yet, if the master were trusted by the trader, he is liable." (e) " If [ * 55 ] goods," observes * Lord Ellenborough, " are taken up by the master, and the money given afterwards to the ser- (6) Helyear v. Hawke, 6 Esp. 73. (e) Holt, C. J., Show. 95; Southby ». (c) Knight V. Barber, 16 M. &W. 69. 'Wiseman, 3 Keb. 625; Nickson v. Bra- id) Comfoot V, Fowke, 6 M. & W. han, 10 Mod. Ill ; Pearce v. Rogers, 358, 3 Esp. 214. 98 CHAP. I.] THE PARTIES. * 55 vant to pay, I am inclined to think the master liable, if the servant have not paid over the money ; for he has given the servant authority to take up goods upon credit. It is therefore material to see when the money was given. If the servant were always in cash beforehand to pay for the goods, the master is not liable, as he never authorized him to pledge his credit ; but if the servant were not so in cash, the master gave him a right to take up the goods on credit, and will be liable if the servant has not paid the plaintiff, though he may have received the money from the defendant, his master." (/) If a master sends forth his coachman into the world wearing his livery to hire horses which the master afterwards uses, knowing of whom they were hired, and yet not sending to ascertain if his credit had been pledged for them, an implied authority is given, and the master is bound to pay the hire, although he may have con- tracted with his coachman that the latter shall provide horses, and may have paid him a large salary for the purpose, {g) If the father of a family puts his children under the protection of servants, and lives himself at a distance from them, the servants have an implied authority to procure necessary medical advice in case of sudden illness or accident. (K) But if the plaintiff has shown a want of due caution, or has trusted the servant to an improper extent, the master will not be liable, (i) Authority of Foremen and Managers. ■ — A foreman entrusted with the general management of a trade or business has an im- plied general authority from his employer to enter into all such contracts as are usually and necessarily entered into in the ordinary conduct and management of the business. (/;) Where the foreman of a saw-mill took an order from the plaintiff for a large quantity of Scotch fir staves, and agreed to have them ready for delivery within a particular period, it was held that his master was responsible for the non-fulfilment of the contract, although no particular authority from the master to the servant (/ ) Busby tt. Scarlett, 5 Esp. 76 ; (h) Cooper x). Phillips, 4 C. & P. Pothier, Obi. No. 456; Arret du Journal 584. des Audiences, torn. 5 ; Miller v. Ham- (J.) Stubbing v. Heintz, 1 Pealce, ilton, 5 C. & P. 433. 66. (g) Rimell v. Sampayo, 1 C. & P. (k) Summers v. Solomon, 26 L. J. Q. 254. B. 301. 99 * 56 FORMATION OF CONTKACTS. [BOOK I. to enter into that contract could be proved. {T) If the acts of agency have been exercised in so open and public a manner that it may reasonably be inferred that the principal must have been cognizant of them, the principal will be liable, although no express authority can be proved. If the agent has published advertisements, and thereby induced parties to con- [ * 56 ] tract * with him, the principal will be bound by the publicity of the announcement, although no actual authority has been given. " It is a question between the prin- cipal and his agenf ; and the public has nothing to do with it" (m) Wherever the principal, by his conduct, has held out the agent to the parties dealing with him as having a general power to act in the premises, his acts bind the principal ; and the liability of the latter upon the contract cannot be qualified by the existence of any private instructions which the agent may have ex- ceeded. (?).) Thus, where J, carrying on business at one place, and having a branch establishment at another, placed the latter under the management and superintendence of B, as his agent, and the branch business was carried on in the name of B & Co., but B had no authority to accept bills, and B nevertheless exceeded his authority by the acceptance of a bill of exc \ange, it was held tliat J was liable thereon, it not being in his ^ ower to divest his agent, by any secret reservation, of the powers incidental to the character of principal which he had empowered him to assume, (o) Telegraph Clerks.^ — A telegraph clerk is only authorized to transmit a telegraphic message in the terms in which the sender ^ As American telegraphs are not a branch of the postal service, but are oper- ated by private corporations, it is proper to state more fully than is done iu the text what has been decided as to exchange of proposal and acceptance by their means. The early view regarded the companies as "common carriers," — Scott & J. Tel. oh. 1 and 4, — and so they are styled in some even recent decisions. But several courts, looking at this question more closely, and it seems more correctly, hava declared that the telegraphs do not " carry; " the nature of the undertaking is to (/) Richardson v. Cartwright, 1 C. & L. J. Ex. 465; Edmunds i). Bushell, 35 K. 328. L. J. Q. B. 20; Pothier, Traite des Obli- (m) Runquist o. Ditchell, 3 Esp. 64. gations, No. 79, 82. (n) EUenborough, C. J., 15 East, 42; (o) Edmunds v. Bushell, L. R. 1 Q. B. Smethurst v. Taylor, 12 M. & W. 554r 97; 35 L. J. Q. B. 20. Smith V. M'Guire, 3 H. & N. 554 ; 27 100 CHAP. I.J THE PARTIES. delivers it ; and, if he makes a mistake in the transmission a the message, the sender is not bound by it. (p) ■ render a service. The proprietors erect a wire with a signal apparatus at each end, and they engage that, when a message is given in at one end, the operator there shall make the necessary arrangements and signals for moving tlic apparatus at the other, and that the operator stationed there shall make known their meaning to the person addressed. Western Union Tel. Co. v. Fontaine, 58 Ga. 433; Bartlett V. Western Union Teh Co., 62 Me. 209; Biruey v. New York, &c. Tel. Co., 18 Md. 341; Squire v. Western Union TeL Co., 98 Mass. 232; Shields v. Washington, &c. Tel. Co., 1 Liv. L. Mag. 69; Grinnell «. Western Union TeL Co., 113 Mass. 299; Opinion of Hunt, J., in Leonard v. New York, &c. Tel. Co., 41 N. Y. 544, 571; Baldwin v. United States Tel. Co., 45 N. Y. 744; Breese v. United States Tel. Co., Allen Tel. Cas. 663; De Rutte v. New York, &c. TeL Co., 1 Daly, 547; '30 How. Pr. 403; Aiken v. Telegraph Co., 5 S. C. 358; 2 Pars. Contr. (6th ed.) 257 b; 2 Am. L. Eev. 62; 12 West Jur. 65. The difference of view is cliiefly im- portant on the question whether the companies are liahle as insurers for accuracy in transmission, or only for ordinary care in the performance of a service as agreed; but may have some bearing on the question of formation of contracts. The question sometimes becomes important: Which is the original of a pro- posal, or an acceptance, — the despatch which was written and handed in to be sent, *)r the transcript which the operator at the other wrote out and delivered i For most purposes, the message as the sender wrote it is the original ; in .special cases, the writing delivered is deemed the original. See Whilden c. Merchants', &c. Bank, 64 Ala. 1 ; Matteson v. Noyes, 25 111. 591 ; Barons v. Brown, 25 Kan. 410; Smith v. Easton, 54 Md. 138; Durkee v. Vennont Central R. K. Co., 29 Vt. 127. It has ktely been held that one who sends by telegraph is bound by the transcript deliv- ered; and that the receiver, where the propriety of his action taken under the mes- sage is in question, is entitled to put the transcript in evidence as the originaL Saveland v. Green, 40 Wis. 431. See 14 Cent. L. J. 262. One who receives an offer or an acceptance by telegraph has the right within limits to rely on the probability that the business is conducted with regtilnrity, accuracy, and success; and, when proof has been made that a message was duly sent, the courts have sometimes acted on the presumption that it was delivered. In Taylor v. The Robert Campbell, 20 Mo. 254, Allen Tel. Cas. 24, the suit was against a steamboat for non-performance of an engagement by her master to trans- port a drove of hogs. The plaintiff proved that he telegraphed to the name of the boat asking for the transportation, and received on the next day, through the same office, a despatch promising to give it, signed in the name of the boat's master. On the question whether this was proof enough in the first instance, or ought he to show affirmatively that the master authorized the despatch, the court allowed the two despatches to be submitted to the jury, they to determine from all the circumstances whether the answer did not come from the master. See also United States V. Babcock, 3 Dill. 571; Commonwealth r. Jeffries, 7 Allen, 548; Howley r. Whipple, 48 N. H. 487; and as to messages sent by impostors. Western Union Tel. Co. V. Meyer, 61 Ala. 158; Bank of California v. Western Union Tel. Co., 52 CaL 280; Elwood ?;. Westeni Union Tel. Co., Allen Tel. Cas. 594; 45 N. Y. 549. As with respect to contracts made by mail, so as to those negotiated by tele- graph; the general rule is that an acceptance takes effect and closes the contract fom the time when it is sent. When one telegraphs an offer, he is understood to ip) Henkel «. Pope, L. R. 6 Ex, 7; 40 L. J. Ex. 15. 101 *56 FORMATION OF CONTRACTS. [BOOK I. Authority of ShipmaBtera. — Masters of ships have an implied general authority to bind the owners for necessary repairs done or supplies furnished to the vessel under their command ; and by the word " necessary " is comprehended such as are fit and proper for the vessel upon her voyage, and such as a prudent owner himself, if present, might be expected to liave ordered, {q) He appoint the telegi'aph as a proper way of answering, and to take the risk that the answer, though promptly sent, may be delayed in transmission. To constitute an acceptance sufficient to complete a contract, it is necessary that there should be a concurrence of the minds of the parties ujion a distinct proposition, manifested by an overt act; now the sending a letter or n telegram accepting a proposal is an overt act clearly manifesting the intent of the party sending it to close with the offer made, and the contract becomes complete upon the sending of such letter or despatch. Trevor v. Wood, 36 N. Y. 307, reversing 41 Barb. 255, Sedg. Dam. (5th ed.) 414, note. Where an offer by letter stipulated for an answer by telegraph, it was held that the telegram in answer was not effective unless received. Lewis v. Browning, 130 Mass. 173. To some extent, one making an offer by telegraph may be held to take the risk (as between him and the sender) of mistakes in transmis- sion; and apparently one who receives an offer which has been changed on its way will be allowed in proper cases to hold the sender to the contract as embodied in the message actually received and the acceptance, leaving the sender to his remedy by action against the company for the mistake. See Wann v. Western Union Tel. Co., 37 Mo. 472 ; Washington, &c. Tel. Co. v. Hobson, 15 Gratt. 122 ; Dunning v. Roberts, 35 Barb. 463 ; in which the parties seem to have treated the erroneous contract as obligatory. More usually controversies involving this point are disposed of on the theory that no contract was formed, for want of any meeting of minds upon the terms ; and that the party injured by the failure of the nego- tiation must seek such damages as he can recover from the telegraph company, for causing it. In the noted case, for instance, in which buyer telegraphed to seller, "send two /wjiti bouquets," but the operators delivered the message "send two hundred bouquets," the parties treated the buyer as liable only for the two bouquets he intended to order, and the seller sued the company for his loss sus- tained in cutting flowers for the other 198. New York, &c. Tel. Co. •». Dryburg, 35 Pa. St. 298. But query whether the seller could have held the buyer to his order as it was communicated to the seller, on the theory that sender, not receiver, takes the risk of errors, leaving the buyer to collect damages from the company ? The cases do not afford a clear rule. Judge Redfield, in an article in 14 Am. Law Reg., 401 (1875), cites English decisions as holding that the sender of an offer by telegraph is not bound by eiTors in transmission; American, as holding that he is, because viewed as having made the telegraph his agent ; and he thinks the latter rule more just and reasonable. See also 17 ib. 222; 227, note. Whether telegrams are sufficiently full and explicit to be treated as embodying a complete contract, see Deshon v. Fosdick, 1 Woods, 286; Calhoun v. Atchi- son, 4 Bush, 261; Smith v. Easton, 54 Md. 138; Hazard v. Day, 14 Allen, 487; Beach V. Raritan, &c. R. R. Co., 37 N. Y. 457; Schonberg v. Cheney, 6 Thomp. &C. 200; 3 Hun, 677; Wells u. Milwaukee, &c. R. Co., 30 Wis. 605; Albertson V. Ashton, 102 111. 50. {q) Webster v. Seekamp, 4 B. & Aid. Stainbank v. Shepard, 13 C. B. 441 ; 352; Weston i>. Wright, 7 M. & W. 396; Aaltjee Willemina, L. R. 1 Adm. 107. 102 CHAP, l] the pakties. * 57 may also pledge the credit of the owners for such things as are ab- solutely necessary for the due prosecution of the voyage, (r) If it be necessary to pay harbor dues, or pilotage, or the like, in ready money, and the master has not been furnished with the necessary funds, he has an implied authority to borrow money, and to bind the owners by a contract for that purpose. But this authority does not extend to cases where the owner can himself personally interfere, as in a home port, or in a port in which he has before- hand appointed an agent who can do the thing required, (s) If the vessel is in a foreign port where the owner has no agent, or in an * English port, but at a distance from the [ * 57 ] owner's residence, and provisions or other things require to be provided promptly, the occasion authorizes the master to pledge the credit of the owner, and make him liable upon the contract. But in all these cases the things must be absolutely necessary to enable the vessel duly to prosecute the voyage, (t) And the owners will not be bound if the money is borrowed, not upon their credit, but upon the private credit of the master himself, (m) The liability of the owner depends, not on his own- ership of the vessel merely, but on his having authorized the master to bind him, either expressly, or by his having held out the master as his master, and having thereby induced the vendor to supply the necessaries on the credit of the owner, (x) The master has also, it seems, authority to settle a claim for demurrage made by him for the detention of the vessel at a foreign port, (y) Iiimitation of the Authority of Shipmasters. — " The authority of the shipmaster is subject to several well-known limitations. He may make contracts for the hire of the ship, but cannot vary those which the shipowner has made." (s) He may take up money in foreign ports, and under certain circumstances at home, for necessary disbursements and for repairs, and bind the owners for repayment ; but his authority is limited by the necessity of (r) Kobinson v. Lyall, 7 Price, 592. (m) Thacker v. Moatea, 1 Mood. & (s) Gunn v. Roberts, L. E. 9 C. P. Rob. 80. 331. (x) The Great Eastern, L. E. 2 Ad. (t) As to home ports, see the 19 & 20 & E. 88. Vict. c. 97, s. 8; Arthur v. Barton, 6 (y) Alexander i). Dowie, 25 L. J. Q. M. & W. 143; Johns v. Simons, 3 Q. B. B. 281. 425; Stonehouse v. Gent, ib. 431, u. ; («) Harris v. Carter, 3 Ell. & BL Poth. (Obi.) No. 448. 659. 103 * 58 FOKMATION OF CQNTKACTS. [BOOK I. the case ; and he cannot make them responsible for money not actually necessary for those purposes, though he may pretend that it is. (a) He may make contracts to carry goods on freight, but cannot bind his owners by a contract to carry freight free. So with regard to goods put on board, he may sign a bill of lad- ing, acknowledging the nature, quality, and condition of the goods ; but his authority to give bills of lading is limited to such goods as have been actually put on board. A party, therefore, taking a bill of lading either originally or by indorsement, for goods which have never been put on board, is bound to show some particular authority given to the master to sign it, in order to charge the shipowner npon it ; (&) nor can the master draw bills of lading making the freight payable otherwise than to the shipowner, (c) The shipmaster has no authority to sell any part of the ship or cargo, except in a case of absolute neces- [ * 58 ] sity, {d) or where the sale is warranted * by the law of the country in which it takes place ; (e) nor has he any authority to hypothecate the ship or to borrow money upon the credit of the shipowners, after the work has been done, for the purpose of paying the debt due for it. (/) The master of a dis- abled ship has power under certain circumstances to forward the cargo by another ship ; but he is not the agent of the owners of the cargo, so as to render them responsible for his act in so doing, where he has the opportunity of communicating with them or their agent, and neglects to avail himself of it. (g) Where the master of a ship contracts as such in a foreign port to carry goods for a foreigner, his authority to bind his owners is that conferred by the law of the country to which the ship belongs ; and the flag of a ship is notice to all the world that his implied authority is limited by the law of that flag, (h) (a) Mackintosh v.Mitcheson, 4 Exch. Aid. 621; The Bonita, 30 L. J. Adm. 175; Edwards v. Havill, 14 C. B. 107; 145; The Gip.sy, 33 L. J. Adm. 195. Organ v. Brodie, 10 Exch. 450. (c) Cammell v. Sewell, 5 H. & N. (6) Grant v. Norway, 10 C. B. 687; 728; 29 L. J. Ex. 350. 20 L, J. C. P. 93; Hubbersty j). Ward, (/) Beldon v. Campbell, 8 Exch. 8 Exch. 330; Coleman v. Riches, 16 C. 886; 20 L. J. E.x. 342. B. 104; 24 L. J. C. P. 125. (g) Gibbs v. Grey, 2 H. & N. 22; 26 (c) Reynolds v. Jex, 34 L. J. Q. B. L. J. Ex. 286; Duranty v. Hart, 33 L. 251. J. Adm. 116. (d) Freeman v. E. I. Co., 5 B, & (A) Lloyd v. Guibert, 33 L. J. Q. B. 104 CHAP. I.] THE PARTIES. * 59 When shipowners have appointed a shipmaster and placed him in charge of the vessel, and have been in the habit of pay- ing for stores and repairs ordered by such master, the general authority of the latter cannot be revoked or circumscribed by any private contract between the master and the owners, of which the persons dealing with the master are ignorant. Where, therefore, by articles of agreement between the owners and the master of a vessel, the master was to have and employ the vessel for his own sole benefit and advantage for eleven years, at a certain rent, and was at his own cost and charge to repair the vessel, tackle, rigging, &c., it was held that the plaintiffs, who had supplied the vessel with cables by order of the master, with- out any notice of the contract, were entitled to recover the price thereof from the owners, (i) Where the ship is let to freight, and the charter-party or contract of affreightment operates as a demise or bailment of the ship to the charterer, so as to clothe him with the possession as well as the use of the vessel, and constitute him the temporary owner, the master becomes the agent of the charterer ; and the latter, and not the registered owner, is then responsible for stores ordered for the use of the vessel by the master in the course of his employment by the charterer, (k) The shipowner, however, is prima facie liable for repairs and stores ordered for his vessel by * the master. If, therefore, on looking to the [ * 59 ] registry, the defendant is found to be the legal owner, a prima facie liability is established against him. But the register is not conclusive ; for the question is a pure question of contract and credit, which, like all other questions of goods sold or work done, must be decided by a jury upon consideration of all the circumstances. If the charter-party operates, as it generally does, merely as a contract for the carriage of merchandise, the shipowner retaining the possession and control of the vessel through the medium of his servants and agents, he cannot repudiate the agency of the 241; The Karnak, L. R. 2 P. C. 505; {k) Fraser v. Marsh, 13 East, 238; 38 L. J. Adm. 57; but see Greer u. Poole, Briggs v. Wilkinson, 7 B. & C. 34; 9 5 Q. B. D. 272. D. & R. 871 ; Reeve «. Davis, 1 Ad. & .. (i) Rich V. Coe, 2 Cowp. 636; Preston E. 312. ti. Tamplin, 2 H. & IT. 684. 105 * 60 FORMATION OF CONTRACTS. [BOOK I. master acting as such with his knowledge. Therefore, a ship- owner who charters his vessel to another, but not so as to give up possession, is liable for a breach of the contract contained in a bill of lading signed by the master, such as injury to the goods by improper stowage, if at the time of shipment the shipper had no notice of the charter. (I) So where the defendant had never employed the plaintiff himself to do repairs to his vessel, but was the legal owner upon the register, and was in concurrent possession of the ship with a party to whom he professed to have sold it, and was fully aware that the shipmaster who was appointed by the latter was giving orders for repairs, and some of the defendant's servants were on board and in charge of the vessel, it was held that the defendant was responsible for repairs done to the ship by the plaintiff upon the order of the ship- master, (m) Where, on the other hand, the shipowner had sold his shares in a vessel, and had ceased to be beneficially interested in the ship, and was not known as a part owner to the party doing the repairs until after the repairs had been ordered and done, but his name continued on the register, it was held that he was not liable for such repairs, unless it could be shown that the master who gave the order for them had an express or implied authority to bind him. (n) A part owner of a ship has no im- plied general authority to bind his co-owners for repairs, (o) Where a party is mortgagee of a ship only, taking merely the security of the ship without intending to incur any of the liabili- ties incident to ownership, the bare circumstance of his being entitled to the vessel, and to the earnings of the ship, will not make the master his agent so as to bind him in respect of con- tracts entered into by the master after the date of the [ * 60 ] * mortgage, (p) A mortgagee in possession of a ship is (Z) The St. Cloud, 1 B. & L. 4; San- 444 ; 25 L. J. Q. B. 39 ; and soe Hibbs deman v. Scurr, L. R. 2 Q. B. 86; 36 L. i). Ross, L. R. 1 Q. B. 534; 35 L. J. Q. J. Q. B. 58; The Figlia Maggiore, L. R. B. 193. 2 A. & E. 106; 37 L. J. Adra. 52; The (o) Brodie v. Howard, 17 C. B. 118 ; Nepotcr, L. R. 2 Adm. 375 ; 38 L. J. 25 L. J. C. P. 57. Adm. 63. (;,) Myers v. Willis, 17 C. B. 103; (m) Frost v. Oliver, 2 Ell. & Bl. 315: 18 ib. 886; 25 L. J. C. P. 255; Hack- 22 L. J. Q. B. 353. wood v. Lyall, 17 C. B. 124; Mackenzie (m) Cnrlingu. Robertson, 8 Sc. N. R. v. Pooley, 11 Exch. 638; 25 L. J. Ex. 19; Mitcheson ■». Oliyer, 5 Ell. & Bl. 124. 106 CHAP. I.] THE PARTIES. * 60 not liable for necessaries supplied, unless the master in ordering them acted as his agent, (q) A separate action cannot be maintained against the master and the owner of a ship for the same identical cause of action. The creditor has an election to sue either one or the other ; but he cannot, after he has sued the one to judgment, maintain another action against the other, (r) Authority of Ship's Husband. — A ship's husband who has authority from the owners to make a charter-party by which commission on freight, primage, and demurrage, is to be due to the charterers, has not power to bind the owners by making an agreement to cancel the charter-party and pay the charterers a sum of money in lieu of commission, although such agreement is for the benefit of the owners, (s) Authority of Brokers.' — One who employs a broker to trans- act business for him in a general market, as, for instance, upon 'It cannot be affirmed that the English doctrine, treating one who employs a stock-broker as impliedly agreeing to be bound by the usages of the board of brokers or local stock-market, has been unqualitiedly adopted in this country. The cases do not cover the subject in all its aspects, and they tend to question or limit the rule. When the question arises between persons who are both members of the same association, board, or exchange, there is good authority for the posi- tion that both are bound by the rales (not unlawful) of the society, and that their relative rights must be determined in the courts in view of those rules, as well as of the terms in which the parties have contracted and the implications the law would raise. This rests upon the principle that one who of his own accord be- comes a member of an association assents to its laws and usages, and is bound by them where they do not conflict with law or public policy. Hyde v. Woods, 94 U. S. 523 ; lie Dunkerson, 4 Biss. 227; Johnson v. La Variete, 28 La. Ann. 421; Palmyra v. Morton, 25 Mo. 593; White v. Brownell, 3 Abb. Pr. N. s. 318; Steve- dores' Assoc. V. Walsh, 2 Daly, 1; Colket ■». Ellis, 10 Phila. 375; Henry ». Jack- son, 37 Vt. 431 ; Dickenson v. Chamber, 29 Wis. 45 : Biddle, Stock b.' 50-53, ib. 66, 67, and cases cited. See, for limits of thisnile, Savannah Cotton Exchange v. State, 54 Ga. 668; State v. Union Merchants' Exchange, 2 Mo. App. 96; People V. Fisher, 14 Wend. 9, 28 Am. Dec. 501, and Freeman's note, ib. 507; People V. Medical Society of Erie, 24 Barb. 570 ; Heath v. Gold Exchange, 7 Abb. Pr. N. s. 251, 38 How. Pr. 168; State v. Williams, 75 N. C. 134; Leech v. Harris, 2 Brews. 571. Eules of an association do not generally affect strangers. Samuels V. Central,&c. Exp. Co., McMahon, 214; Flint v. Pierce, 99 Mass. 63. The doctrine is easily extended to cases in which the contracting parties, though not technically members of a particular association, are both brokers, practically con- versant with the usages of the market in which their dealings take place ; and to (?) The Troubadour, L. B. 1 Adm. (r) Priestley v. Fernie, 34 L. J. Ex. 302. 173. (s) Thomas v. Lewis, 4 Ex. D. 18. 107 I* 60 FORMATION OF CONTKACTS. [BOOK I. the stock exchange, impliedly authorizes him to deal according to the general and known usages and customs of that market, although he may not himself be aware of their existence. But cases in which the customer, although not a broker, employs the broker with full .knowledge of the customs of the business. Wherever such facts show that the principal employing a. broker to buy or sell entered into the arrangement with reference to local or special customs, he may well be held bound by them. But in most of the cases where the question has arisen between a stock-broker and a customer not a member of any board, and not acquainted with the peculiar course and usages of stock -brokerage, American courts have not generally considered the customer under any implied obligation to abide by the local or special rules urged against him. See the following cases : — Owners of Western railroad shares employed a Philadelphia firm of brokers to make sale of them, and the Philadel- phia firm entrusted the shares to W, who was the Philadelphia agent of a New York firm, to be sold in New York. W sent the shares to his New York principals, and they sold them and collected the money; but before they had remitted it W failed, in debt to them on other business, and they then claimed to retain the amount of his indebtedness out of the proceeds of the shares, alleging that it was a custom among stock- brokers, when dealing with brokers in other cities, to embrace all transactions between the two firms in one account and remit or draw for the general balance; and that there was no privity between them and the general owner of the shares, but they had the right to treat them as the property of the broker through whom they received them. The Supreme Court of Pennsylvania sustained the rul- ing of the trial court, refusing to receive evidence of the custom alleged, saying that such a usage could not lawfully be extended to shares owned by a third person. "If," said WUliams, J., "there is a custom among stock-brokers, when dealing- with others, to appropi'iate money belonging to the principal to the payment of his broker's indebtedness, the sooner it is abolished the better; a custom so iniqui- tous can never obtain the force or sanction of law." Evans v. Wain, 71 Pa. St. 69. Where one who held shares as trustee pledged them lor his private debt, the pledgee making no inquiry as to his authority, the pledgee afterwards, in a suit lirought in behalf of the benefiiiary, offered to show usages of the stock-ujarket of Boston, where the dealing took place, for certificates of stock to be issued in the name of a trustee, when in fact there was no trust, and for such certificates to be bought and sold upon the simple indorsement of the nominal holder, without in- quiry as to his authority or purpose. But the Supreme Court of Massachusetts held such evidence iifcompetent, on the grounds that the word " trustee" legally imports a trust, and that any usage of brokers to use it or disregard it as a jiction would be bad. Shaw v. Spencer, 100 Mass. 382. The same couit, in a later case, in which a broker claimed the benefit of a local usage, that in filling orders for stock deliverable at buyer's option within a specified period the broker might buy the stock for cash, or on short time, and carry it until the maturity of the contract, and might charge a brokerage besides commission for buying, as a coinpensation for carrying, pronounced the alleged usage contrary to common sense and good morals ; for it assumed to authorize the broker to speculate for his own benefit. Day v. Holmes, lUo Mass. 306; see also Pickering v. Demeritt, 100 ib. 416; Fisher v. Brown, 104 ib. 261; Commonwealth v. Cooper, 130 ib. 285. In New York, in cases where brokers carrying stock for a customer upon a margin have sold the stpck fgr want of additional margin without giving him notice, and have claimed "tlW right to do this under a usage of the Exchange, by which brokers there may sell out a customer's stock summarily when his margin 108 CHAP. I.] THE PARTIES. * 66 "when an usage or custom is intended to be relied upon, it ought to be clearly and distinctly proved to exist, and to be so general and notorious that persons dealing in the market could easily ascertain it, and must be presumed to be -aware of it ; and, in order to bind persons ^who were not aware of it, it must also appear to be a reasonable usage, (t) is exhausted, the courts have pronounced against such claim, on the ground that the broker holds stock so purchased as a pledge, and that the customer has the legal right of a pledgee to have notice of the time and place of sale, or the benefit of some judicial proceeding to foreclose, of which he cannot be deprived by mere usage. Gruman v. Smith, 44 New York Superior Ct. 389 ; Markham v. Jaudou, 41 N. y. 235. But compare Nourse v. Prime, 4 Johns. Gh. 490; 7 Jolras, Oh. 69'; Eobinson v. Norris, 51 How. Pr. 442, 6 Hun, 233; and 21 Am. L. Reg. 171, 176. New York brokers distributed circulars advising the purchase of "straddles " as a safe and profitable form of speculation, and offered to buy them for customers, under a guaranty of "no loss except commission." A person who received a circular, and had no particular knowledge of brokers' usages, gave an order, rely- ing on the guaranty; but, when the brokers' account of the transaction was made, they brought the customer in debt, alleging that after buying the straddle they had sold shares short against it, in consequence of which the speculation had resulted disastrously, and claiming a right, under a usage of brokers, to employ a straddle in this way. The Court of Appeals held that the authority of the broker must be deduced from the correspondence and the rules of law applicable; that his only right as agent was to exercise the option involved in the straddle, in the customer's behalf ; and that he could not justify himself under a local usage, unknown to the customer, in venturing upon a new and independent transaction, Harris v. Turabridge, 83 N. Y. 92, 3 Abb. N. Gas. 293. Where a broker charged a customer with more than he had actually spent, as "cost of telegrams," and claimed a right to do so under a custom of brokers to embrace in one message all directions needful in behalf of all the customers whose business was active at the moment, and to charge each customer seventy-five cents (the price of ten words), which is what his message must have cost if sent separately, though perhaps more than its share of a long message combining many orders, held, that a broker cannot sustain charges for disbursements not actually made, on the ground of custom, unless the custom was presumably known to the employer. Marye v. Strouse, 5 Fed. Reporter, 483. Too many of the decisions involve the ground that the particular custom alleged was contrary to law or public policy, or to the express contract proved, to allow of saying that the English rule holding the customer chargeable by mere implication with the usages of the market in which he orders his broker to deal, is repudiated ; but as yet it finds but little support in American cases. The tendency of opinion in the courts seems to favor applying to these agencies the general principle that parties are bound by special or local usages only so far as they must presumably have had knowledge of them when contracting. Opinion of some recent text-writers favors adopting the English doctrine. Dos Passos, Stockb. ch. vii. Usages of Stockbrokers, p. 341 ; Biddle, Stockb. ch. vi. p. 215: See also Levris, Stocks, ch. ii. p. 23 ; Lawson, Usages, 287, 288. As to a local usage to settle accounts in a manner which may under certain circumstances, but does not necessarily, involve usury, see Hatch v. Douglas, 48 Conn. 116. ' , (t) Griasell v. Bristowe, L. E. 3 G. P, 112 ; 38 L. J. C. P. 10. 109 * 61 FORMATION OF CONTRACTS. [BOOK I. Ship Brokers. — If a broker, who is authorized to advertise a ship for a voyage, warrants by liis advertisement that she shall sail with convoy, the shipowners are bound by the warranty, although in giving it the broker may have exceeded his author- ity, (u) Authority of Counsel. — Counsel retained to conduct a cause is clothed -with an apparent authority to do everything belonging to the conduct of it which in the exercise of his discretion he thinks best for the interest of his client ; and if, acting within the limits of this apparent authority, he enters into an agreement with the counsel for the other side as to the cause, this agreement is binding on the client. But counsel has no right to manage a cause against the will of his client or to make a bind- [ * 61 J ing agreement as * to it, if the other side is informed that this apparent general authority has been in fact limited, (x) Authority of Solicitors.^ — The force of a solicitor's retainer is at an end, and his power to bind his client by a compromise 1 Of the implied authority of attorneys and counsel to contract for their clients in respect to the suit in which they are retained, Chief Justice Durfee, of Rhode Island, says (in Whipple v. Whitman, 26 Alb. L. J. 231, 13 E. 1.) that the deci- sions are contradictory. In England the doctrine established by the later cases is that the attorney has power, by virtue of his retainer, to compromise the action in which he is retained, provided he acts bona fide and reasonably, and does not violate the positive instructions of his client, and that the compromise will bind the client, even if he does violate instructions, unless the violation is known to the adverse party. Swinfen v. Swinfen, 18 C. B. 485; Swinfen v. Lord Chelmsford, 5 H. & N. 890 ; Chambers v. Mason, 5 C. B. N. s. 59; Chawn v. Parrot, 14 C. B. N. 6. 74; Prestwich v. Foley, 18 C. B. N. s. 806; Fray v. Voules, 1 El. & E. 839; Butler V. Knight, L. R. 2 Ex. 109; Thomas v. Harris, 27 L. J. N. s. (Ex.) 353, Re Wood, 21 W. Rep. 104. The reason assigned is that the attorney, within tlie scope of his retainer, is considered the general agent of his client. And it is strongly argued in support of the power, that it ought to be upheld both as a mat- ter of public policy and for the good of the client, inasmuch as the attorney usu- ally knows vastly better than the client whether it is better to risk the trial of the suit or to compromise it, and is often called upon to do the one or the other suddenly in the absence of the client. See Whart. Agency, § 590. The English doctrine finds support in a few American cases (Wieland v. White, 109 Mass. 392; Potter c. Parsons, 14 Iowa, 286; Holmes u. Rogers, 13 Cal. 191; North Mi.ssouri R. R. Co. ti. Stephens, 36 Mo. 150; Reinhold v. Alberti, 1 Binn. 469); but the main current of decision in this country seems powerfully against it. Weeks, Att'y at L. § 228; Ambrose v. McDonald, 53 Cal. 28; Preston v. Hill, 50 Cal. 43; Levy v. (tt) Ringuist v. Ditehell, 2 Campb. (x) Strauss v. Francis, L. R. 1 Q. B. 656, n. 379; 6 B, & S, 365; 35 L. J. Q. B. 133. 110 CHAP. I.] THE PARTIES; * 61 ceases, when judgment is recovered ; (y) but if, after judgment, the relation of solicitor and client is continued or re-created, the former will have authoiity to bind the latter by a com- promise. (2) Simple Contracts entered into by Agents in their representa- tive character, on behalf of a principal whose name is disclosed at the time of contracting, must as a general rule, as we have already seen, be enforced by the principal ; and the agent cannot bring an action upon them in his own name, (a) unless he can show that he has an interest or a special property in the subject- matter of the contract, or unless he has so contracted as to make himself personally responsible for the fulfilment of the contract, (b) But if a bill of exchange or a promissory note is made pay- able to one man for " the use," or " for and on behalf," or for the benefit, of another person named on the face of the bill or note, the payee is the proper party to bring an action upon the instru- ment, (c) When a written contract has been entered into by an agent on behalf of his principal, and the agent's representative character is not disclosed on the face of such written contract, the agent is entitled to maintain an action thereon, unless the prin- cipal interferes to prevent him. (d) So if an agent carries on trade for his principal in his own name, -and ostensibly on his own account, he is entitled to maintain an action in respect of goods sold by him in the course of that trade, unless the real Brown, 66 Miss. 83; Picket v. Merchants' Nat. Bank, 32 Ark. 346; Walden v. Bolton, 55 Mo. 405 ; Mandeville v. Reynolds, 68 N. Y. 528 ; Wandhams v. Gay, 73 111. 415 J People!). Quick, 92 111. 680. The American courts, however, favor such compromises when fairly made, and readily uphold them if they can. "Although," says Chief Justice Marshall (in Holker v. Parker, 7 Cranch, 436, 452), " an attorney at law, merely as such, has, strictly speaking, no right to make a compromise, yet a court would he disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on or not fairly exercised ; " see also Roller v. Woold ridge, 46 Tex. 485; Potter v. Parsons, 14 Iowa, 286; Fritchey v. Bosley, 56 Md. 94; Granger v. Batchelder, 26 Alb. L. J. 289; and article, 15 Cent. L. J. 241. (j/) Macbeath v. Ellis, 4 Bing. 578. 153; 26 L. J. C. P. 15; Fawkes v. Lamb, [z) Butler ii. Knight, L. R. 2 Ex. 31 L. J. Q. B. 98, post, p. * 62. 109. (c) Evans v. Cramlington, Carth. 5; {a) Fairlie v. Fenton, L. R. 6 Ex. 2 Veutr. 307; Beckham ■». Drake, 9 M. 172; 39 L. J. Ex. 107; anle, p. • 40. & W. 92, 96. (6) Cooke V. Willson, 1 C. B. n. s. (d) Schmaltz v. Avery, 16 Q. B. 659; 20 L. J. Q. B. 228. Ill * 62 FOEMATION OF CONTEACTS. [BOOK 1 principal interferes, and asserts his right to the sum due. (e) Factors generally sell the goods of their principal in their own names, and are alone known throughout their dealings and trans- actions to the purchaser; and they are consequently entitled to maintain an action for the price. " Inasmuch as the agent is the person with whom the contract is made, it is no answer to an action in his name to say that he is merely an agent, unless you can also show that he is prohibited from carrying on that action by the person in whose behalf it was made. In such cases you may bring your action either in the name of the person by whom, or of the party for whom, the contract was made." (/) - [ * 62 ] * Right of Action of Factors, Auctioneers, and Policy- Brokers. — If the agent himself has an interest or a special property in the subject-matter of the contract, he is en- titled to maintain an action upon it. Where a broker has advanced money on the credit of a cargo consigned to him by his principal for sale, he is entitled to an action in his own name against the buyer, although the sale note given by the broker mentions the name of the principal ; {g) and the buyer in such a case cannot set off a debt due to him from the principal in an action by the agent. But if, by the introduction of the name of the principal into the contract, the defendant has been preju- diced, he will be entitled to make use of that circumstance as a defence. So, too, in the sale of goods by a factor, although the principal may be named or known at the time of the sale, yet, as the factor has a claim on the price of the goods in the hands of the buyer for the balance due to him on the general account with his principal, he has a right to require payment of the price, to the extent of such general balance, to himself, and not to the principal. (Ji) An auctioneer has a special property in goods which he is employed to sell, with a lien for the charges of the sale, the commission, &c. ; and he may, therefore, maintain an action against a buyer for the price of goods sold by him, although the sale was at the house of the principal, and the goods were pub- licly known to be the property of the latter, {i) He has a lien (e) Gardiner v. Davia, 2 C. & P. 49. (h) Drinlcwater v. Goodwin, Cowp. (/) Bayley, J. , Sargent «. Morris, 3 B. ■ 255. &A. 181; Clay v. Southern, 7 Exch. 717. (i) WilUams v. Millington, H. Bl. 81; {g) Atkyns v. Amber, 2 Esp. 493. Wolf v. Home, 2 Q. B. D. 355. 112 CHAP. I.] THE PARTIES. * 63 also on the proceeds of the sale as well as on the specific article sold, and seems to be in the same position as a factor who sells goods upon wliich he has advanced money ; so that it is no answer to an action by an auctioneer for the price of goods sold by him to say that before action the defendant paid the price to the principal, (k) But it is otherwise if the auctioneer's charges have been paid before action, and the purchaser has a good an- swer to any action by the vendor for the price ; Q) and if goods are sold, to be paid for at a future period, and are delivered to the buyer, without notice from the agent that he has any lien or claim on the price for duty, commission upon selling, or the like, and the buyer, in the absence of such notice, settles with the principal, the agent's right of action is destroyed, (m) A policy- broker who effects a policy of insurance in his own name, as agent, at the same time declaring for whose use, benefit, or interest the same is made, is entitled to an action on the policy, inasmuch as, by the usage of trade, he has a lien upon it for the premium, which is generally paid by the broker, for * his commission, and for the general balance due to [ * 63 ] him on the account between himself and his principal. Repudiation of the Contract by the Principal. — When an agent has entered into a contract of sale for an unnamed and unknown principal, it is no defence to an action brought by the agent upon that contract, to say that the principal afterwards repudiated it. (n) Pretended Assumption of Agency. — When a man has assumed to himself the character of an agent to another, whom he names as his principal, the law will not permit him to shift his situa- tion, and bring an action as the principal and party really in- terested in the contract, without giving to the defendant previous notice of the situation in which he stands. Having misled the defendant by assuming a character and situation which did not belong to him, he is bound to undeceive him before bringing an action, (o) But, if the principal is not named on the face of the (Jc) Eobinson d. Rutter, 4 EU. & Bl. (n) Short v. Spackmau, 2 B. & Ad. 9,'i6; 24 L. J. Q. B. 250. 962. (0 Grice v. Kenrick, L. R. 5 Q. B. (o) Bickerton v. Burrell, 5 M. & S. 340; 39 L. J. Q. B. 175. 383 ; Eayner v. Grote, 15 M. & W. {m) Coppin v. Walker, 7 Taunt. 242. 359. VOL. I. 113 * 64 FOKMA.TION OF CONTRACTS. [BOOK I. contract, the party professing to contract as agent for an un- named principal is not precluded from saying at any time, " I am myself that principal," and from asserting his rights in that character, (y)) Right of Action of Agents on Contracts under Seal. — If the agent contracts under seal in his own name on behalf of his principal, he may sue upon the contract, although his represen- tative character is disclosed on the face thereof; but if the principal is made to covenant in his own name, and not the agent for him and in his behalf, the agent has then, of course, no right of action at all upon the contract. Liabilities of Agents on Simple Contracts. — Whenever an agent contracts in his own name for the fulfilment of a particular act or duty, without any ipalification of his liability on the face of the contract, he is personally responsible for the fulfilment of the act undertaken to be done, although he was known to be acting only as an agent for some third party, {q) unless it was expressly agreed that he was not to incur any personal liability npon the contract, (r) Where a person signs a contract in his own name without qualification, he is prima facie to be deemed to be a person contracting personally ; and, in order to prevent this liability from atta,ching, it must be apparent from the other portions of the document that he did not intend to bind himself as principal ; (s) and the use of the words " as agent for " [ * 64 ] in the * body of the contract does not prevent the lia- bility of a party who signs as principal, {t) For the words " as agent '' may be merely words of description, but if the words "on account of" are used, there is no ambiguity, and the intention to act for another is clear. (?') Sn whenever, in the body of a simple contract in writing, the agent contracts in his own name, and signs his name to the contract, he may ren- der himself personally responsible for the fulfilment of the contract, although he declares that he contracts on behalf of a (p) Schmaltz v. A^ery, nnlc, p. * 61. (s) Thompson v. Davenport, 2 Sm. (q) Reid V. Draper, 6 H. & N. 813; Lead. C'fis. 6th cd. p. 344. 30 L. ,r. Ex. 268. {I) Pake v. Walker, L. E. 5 Ex. 173; (r) Wake v. Harrop, 6 H. & N. 768; 39 L. J. Ex. 109 ; and see Hough v. 1 H. & C. 202; 30 L. J. Ex. 273; 31 L. Manzanos, 4 Ex. D. 104. J- Ex. 451. (m) Gadd v. Houghton, 1 Ex. D. 357, C. A. 114 CHAP. I.J THE PARTIES. * 65 named principal, (x) or that he signs by procuration of, or as agent for, a named principal, (y) If it appears from the general context of the written instrument that the agent himself was to be responsible for the due fulfilment of the contract, the words " for and on behalf," or " as agent for," will be deemed to be mere matter of description, and will not exempt the agent from personal liability ; and there is no distinction in this respect between deeds and simple contracts, (s) Whether he is so liable depends upon the terms of the particular contract, construed in connection with the surrounding circumstances and the relative situations of the parties at the time the contract was entered into. («) If, on the face of the contract, there is an express dis- claimer of personal liability on the part of the agent, effect will be given to such disclaimer, although the agent has contracted in his own name on behalf of an unnamed principal ; but the agent must have had authority to enter into the contract on behalf of his principal, and must have intended to contract so as to bind the latter, (h) Where an auctioneer subscribed a memo- randum, indorsed on particulars of sale, to the following effect : " I, E. Driver, as agent for the vendor, hereby agree to sell to the above-named R H. Gaby (the plaintiff) the lot thirty-eight referred to in the above memorandum,'' it was held that the auctioneer had not thereby engaged to be personally responsible for the making out of a good title to the estate, (c) So where an auctioneer, as agent for the landowner, promised in his own name, on behalf of the landowner, that he (the auctioneer) would make out a title, and, the agreement having been signed by the auctioneer and purchaser, the owner, with the knowledge and consent of the purchaser, afterwards added, " I hereby sanction this agreement, and approve of G-. Lavender (the auc- tioneer) * having signed the same on my behalf," to [ * 65 J which ratification he appended his own signature, it was held that the agreement and ratification might be con- (k) Parker v. Winlow, 7 Ell. & Bl. v. Christian, 4 Ell. & Bl. 597; 24 L. J. 942; 27 L. J, Q. B. 49. Q. B. 91. (y) Lennard v. Robinson, 5 Ell. & Bl. (Ieiiliants' Bank v. Central Bank, 1 Ga. 418; Carey w. McDougald, 7 Ga. 84; Topping i: Brickford, 4 Allen, 120; Dana v. Bank of St. Paul, 4 Minn. 385; Safford V. Wyckoff, 4 Hill, 442; First Baptist Chureli v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Barnes v. Ontario Bank, ib. 152; Leavitt v. Blatcliford, 5 Barb. 9; Neiffer V. Bank of Knoxvillc, 1 Head, 162; Constant v. Allegheny Ins. I 'o., 1 Am. L. Reg. N. s. 116; but see MrSpedon v. New York, 7 Bosw. 601. That the relaxation of the rule requiring a seal does not extend to municipal corporations, see San Antonio v. Gould, 34 Tex. 49. See full note, 21 Am. L. Reg. N. s. 103. (:) Co. Litt. 92 a, 2 b. 148 CHAP. I.] THE PAKTIES. * 88 the name of the head of the corporation, or in the names of the individual members thereof, the corporate body cannot in gen- eral sue or be sued upon the contract, although the common seal has been affixed to it. (a) If a covenant is made with a corpora- tion by name, it is sufficient if the name and description inserted in the deed are " the same in substance with the true name ; it need not be the same in words or syllables ; " (b) for when- ever there is in truth but one and the same corporation, contracts made with them ought not to be avoided by nice and verbal variances, when it plainly appears what was the * true name of the corporation. And there is a [ * 88 ] difference between ancient corporations and corpora- tions made of late times ; for ancient corporations may by usage have divers and several names, and leases, grants, &c., by any of them will be good enough, (c) If, moreover, a corporation adopts any particular name or seal different from its true name or seal, and uses it in making contracts, it may be estopped from showing that the name and seal so adopted and used are not its true name and seal, (d) Want of Mutuality of Obligation. — If an executory simple contract, founded upon mutual promises and a mutuality of obli- gation and liability, is not binding upon a corporation by reason of its not being under the seal of the body corporate, it cannot be enforced by the corporation by reason of the absence of reci- procity or mutuality of obligation and liability, (e) Infancy in the mayor, bailiff, or other head of a corporation, or any incapacity to contract on tlie part of individual members thereof, do not in any way affect the rights and liabilities of the corporation in respect of corporate acts. (/) An act done by the members of a municipal corporation in the absence of the head is not the act of the corporation. Thus, if a bond be given by the commonalty in the absence of the mayor, the body corporate is not bound. But if a mayor de /ado, (a) Bm. Ahr. Corporations, -pi. 31; 15 (c) Mayor, &c. of Lynne, 10 Co. E. 4, 1; Com. Dig. Franchi.5e!!, F. 19. 123, a. (b) Rex V. Haughley, 4B. & Ad. 655 ; (d) Elliott v. Davis, 2 B. &P. 338. Sidney Sussex College v. Davenport, 1 (c) Copper Miners of England v. Fox, "Wils."l84; Croydon Hosp. v. Farley, 6 20 L. J. Q. B. 176; 16 Q. B. 229. Taunt. 467. (/) 1 Kyd, 312 ; Rex v. Carter, 1 Cowp. 225 ; Bro. Abr. Corporatioiis, 63. 149 *89 FORMATION OF CONTRACTS. [BOOK I. together with such other members of the corporation as are em- powered to bind the whole by their act, put the common seal to an obligation, tliis shall bind the corporation, though he be not de, jure, mayor ; for, being in fact appointed to the office, and permit- ted to act in it by the corporation, who might have removed him, all judicial and ministerial acts done by him are valid. Gener- ally speaking, all corporations are bound by a covenant under their corporate seal, properly affixed, as much as an individual is by his own deed. But where corporations are created by act of parliament for particular purposes, with special powers, then their deed, though under their corporate seal, regularly affixed, will not bind them, if it plainly appears that the deed is ultra vires, (g) If the common seal has not been affixed to the con- tract, the general rule is that the contract is not the contract of the corporation, but of the individual members concerned in the making of it, who can alone sue and be sued thereon. (A) But this rule has been subjected to numerous exceptions, and has been almost superseded in practice in the case of trading cor- porations, the end and object of whose existence could [ * 89 ] * never be accomplished if every corporate act was re- quired to be authenticated under the common seal. Implied Contracts with Corporations.^ — If a person has had the benefit of the fulfilment of a contract which could not have been enforced against a corporation whilst it remained executory, the law will raise an implied promise in its favor, upon which it may sue in its corporate character, (i) Where, for example, a party has enjoyed all the benefit and advantage of a parol con- tract entered into witlr a corporation, he will not be permitted to discharge himself from the ordinary liability on the ground that the contract was not entered into under the common seal of the corporate body. (^■) A municipal corporation, therefore, may 1 See anti', p. * 87, American note 1. (g) Payne v. Mayor of Brecon, 3 H. St. N. Co. v. Marzetti, 11 Excli. 228 ; & N. 579. 24 L. J. Ex. 273. (;;,) Bro. Abr. Corporations, pi. 47, {k} Fishmongers' Co. v. Robertson, 5 49, .10, 56, 63; 1 Roll. Abr. 514. M. & Gr. 192; Liverpool Borough Bank (7) Beverley v. Line. Gas Co., 6 Ad. v. Eccles, 4 H. & N. 139; 28 L. J. Ex. & E. 839; 2 N. & P. 283; Aust. R. M. 122; Melbourne Corp. v. Brougham, 4 150 Ap. Cas. 156. CHAP. I.] THE PARTIES. * 90 sue for the use and occupation of tolls not granted to the occu- pier under the common seal ; (l) and for the use and occupation of houses and lands, the property of the cdrporation, where the tenant has actually occupied and taken and enjoyed the profits of the land, (m) And one who enters upon, occupies, and pays rent for corporate property under a demise for a term of years made on behalf of the corporation, but not sealed with their common seal, becomes tenant from year to year of the corpora- tion, on such terms of the demise as are applicable to a yearly tenancy, (n) and the corporation may distrain for the rent, (o) The corporation is in like manner responsible upon the ordinary implied promise in respect of the use and occupation of houses and lands, during the period it actually occupied, (p) but no longer, as it cannot be bound by an executory contract for an interest in land not made under its common seal, (q) So if there has been part performance of a contract for a lease by a corporation, specific performance will be decreed, though the contract was not under the corporate seal, (r) Where the unsealed contract is of such a nature as to be the subject of an action for specific performance, and such contract has been in part performed under circumstances which render the equitable doctrines of part performance applicable, the con- tract will bind the corporation ; but in other cases it is extremely doubtful whether the mere fact that a contract, not otherwise * binding upon the corporation, has been [ * 90 ] wholly or partly performed, renders the corporation lia- ble to be sued either on the contract or on a quantum meruit, (s) A corporation with a head, such as a municipal corporation, may also transact trifling matters of business, and enter into (I) Mayor, &c. of Carmarthen v. (r) Steeven's Hospital v. Dyas, 15 Ir. Lewis, 6 C. & P. 608. Ch. R. 405; Crook v. Corporation of (m) Dean, &c. of Rochester w. Pierce, Seaford, L. R. 10 Eq. 680; ib. 6 Ch. 1 Campb. 466; Mayor of Stafford v. Till, 551. 12 Moore, 260; 4 Bing. 77; Vin. Abr. (s) Hunt u "Wimbledon Local Board, CorpoTotiOTis (K) p. 41. 3 C. P. D. 208, per Lindley, J., where (n) Ecclesiastical Commissioners v. the authorities are collected ; and s. c. Merral, L. R. 4Ex. 1621; 38L.J. Ex.93, in C. A.; 4 C. P. D. 48. See also (o) Woodu. Tate, 2 B. &P. N. R. 247. Young v. Corporation of Leamington, (p) Lowe V. London & N. W. Ry. 8 Q. B. D. 579. Agent appointed under Co., 18 Q. B. 362; 21 L. J. Q. B. 361. seal made a contract not under seal; (q) Finlay v. Brist. & Ex. Ry. Co., held not binding. 7 Exch. 416; 21 L. J. Ex. 117. 151 * 90 FORMATION OF CONTEACTS. [BOOK I. such ordinary contracts as are of constant recurrence, and the making of which forms part of its customary and usual functions, without the employment of its common seal. It may hire the ordinary servants of the corporation, such as a butler, cook, bail- iff, &c., and may contract for the purchase of trifling articles without deed. " If the head of a corporation, by the interven- tion of a servant, buys certain things for the use of a corporation, which are actually applied to their use, they are bound by this contract, and an action may be maintained against them after the change of the head in whose time the purchase was made. So if the regular servant of the corporation make a purchase, and apply it to the use of the corporation, it would seem that the corporation is bound." (t) Where the head of a municipal cor- poration gave an oral order for weights and measures, which were sent to him, and were afterwards examined at the town- hall, at a fidl meeting of the corporation, and approved, accepted, and used by the corporate body, it was held that the corporation was responsible for the price of the goods so ordered, (u) So a contract for the admission of a ship into a dock for repairs has been held not to require a seal, (v) If a municipal corporation has wrongfully got possession of the money of a stranger, or the money of one of its own members, tlie law raises an implied promise from the corporate body to refund the amount, just the same as in the ordinary case of the receipt of money by a pri- vate individual which the latter has no right in conscience or equity to retain. (;r) But in all matters of consequence and im- portance, and in respect of acts and contracts not coming within the scope of its ordinary every-day functions, the corporation is not bound by the act done, unless it is a corporate act authenti- cated by writing under the common seal, (y) At a meeting of the town council of a municipal corporation, a resolution was entered in the corporation books to the effect that the salary of the town clerk should be increased ; but it (0 1 Kyd, 31.3, 314, citing Longo (.-•) Ld. Denman, Hall i;. Mayor, &c. Quinto (Ed. 4), 70-74. of Swansea, 5 Q. B. 547 ; 13 L. J. Q. {u) De Grave v. Mayor, &c. of Moil- B. 112. mouth, 4 C. &P. 111. (y) Mayor, &c. of Ludlow v. Charl- (v) \Vills V. Kingston-upon-HuU, L. ton, 6 M. & W. 815. 1!. 10 C. P. 402. 152 CHAP. I.] THE PAKTIES. * 91 was held * that the corporate body was not bound by this [ * 91 ] resolution, as it had not been made under the common seal. (2;) So where the London Dock Company accepted, by parol through their clerk, a tender by a contractor to cleanse the docks for a year for a certain sum, and the contractor refused to fulfil his engagement, it was held that the company could not enforce the contract, as the offer had not been accepted under their common seal, (a) And where the guardians of a union, a corporate body by statute, entered into a contract under their common seal with the plaintiff for the making of a survey and map of one of the par- ishes in the union,, which contract was duly fulfilled, and subse- quently, in consequence of a reduced plan being directed to be made, the plaintiff prepared an outline map on a reduced scale, which was received and used b)^ the guardians, but no contract was entered into by them under their common seal to pay the price thereof, it was held that they were not responsible in their corpo- rate capacity for the payment of this outline map, inasmuch as the preparing of a plan in order to have a parochial assessment made was no part of the duty of the guardians, and was not essential for the carrying out of the purposes or objects for which they were incorporated. (6) So the contract for the engagement of a clerk to the master of a workhouse by a board of guardians must, in order to bind the guardians and render them liable for a wrong- ful dismissal, be under their seal, (c) But where iron gates and water-closets were made and erected at the union workhouse, pursuant to an oral order given by the guardians, it was held that the guardians were responsible in their corporate capacity for the payment of the price of them, as they were necessary for carrying out the purposes for which the guardians were incor- porated ; and it was laid down as a general rule of law by the Court of Queen's Bench, that wherever the purposes for which a corporation is created render it necessary that work should be done and goods supplied to carry such purposes into effect, and (z) Reg. 0. Mayor, &c. of Stamford, 6 (b) Paine v. Guard. Strand Un., 8 Q. Q. B. 433. As to orders for the payment B. 326; 10 Jur. 308; Lamprelli;. Biller- of money out of the borough fund, see icay Un. , 3 Exch. 307; Smart ii. West- The Queen v. Mayor, &c. of Warwick, ham Un., 10 Exch. 875 ; 2i L. J. Ex. 15 L. J. Q. B. 306. 201. (a) London Dock Co. v. Sinnot, 1 Ell. (c) Austin v. Guardians of Bethnal & Bl. 347; 27 L. J. Q. B. 129. Green, L. K. 9 C. P. 91. 153 * 92 FOKMATION OF CONTKACTS. [BOOK I. orders are given at a board regularly constituted, and having gen- eral authority to make contracts for such work or goods, and the work is done and the goods supplied and accepted by the corpo- ration, and the whole consideration fur payment executed, the corporation cannot keep the goods or the benefit and refuse to pay, on the ground that, though the members of the cor- [ * 92 ] poration who ordered the goods or work were * compe- tent to make a contract and bind the rest, the formality of a deed or the affixing the seal were wanting, (d) Where, therefore, a corporation employed the plaintiff as an accountant to go through its books and audit its accounts, it was held that the services rendered were essential to the accomplishment of the puiposes for which the corporation was created, and that the corporation was responsible upon an implied contract for remu- neration, (e) So where the plaintiff supplied coals from time to time to the defendants, the guardians of a poor-law union, for the use of their workhouse, under articles of agreement executed by the plaintiff, but not under the seal of the defendants, it was held that, as the goods were such as must necessarily be from time to time supplied for the very purposes for which the de- fendants were incorporated, they were liable to pay for the coals, although the contract was not under seal. (/) " The appointment of an attorney to conduct important suits affecting the rights and property of a hiunicipal corporation must in general be under seal, except in the case of the City of Lon- don, who appoint an attorney by warrant of attorney in the Queen's Bench every year, without either sealing or signing, and are estopped by the record to say it is not their act." (g) Cor- porations remain always the same as to debts and rights, so that if an old corporation is incorporated by a new name, it may recover in its new name debts contracted with the old corpora- (d) Sanders D. Guard. St. Neots, 8 Q. Uii., El. Bl. & El. 873; 28 L. J. Q. B. B. 810 ; 15 L. J. M. C. 104; Clarke v. 66. Cuckf. Un., 1 Bail. C. C. 85 ; 21 L. .T. (/) Nicholson v. Bradfield Guardian.s, Q. B. 349; Henderson v. Austral. St. L. R. 1 Q. B. 620 ; 7 B. & S. 747; 35 Nav. Co., 5 Ell. & Bl. 409; 24 L. J. Q. L. J. Q, B. 176. B. 322; Renter v. Elect. Tel. Co., 6 Ell. (<;) Mayor of Thetford's case, 1 Salk. & Bl. 341; 26 L. J. Q. B. 46. 192 ; 3 Salk. 103 ; 2 Raym. 848 ; Ar- (e) Haigh v. Guard. North Brierly nold v. Mayor of Poole, 5 Sc. N. R. 776; 4 M. & Gr. 860. 154 CHAP. I.J THE PAUTIES. * 93 tion. (h) A corporation revived by a new charter has all its rights revived and put in action, and is entitled to the credits of the old corporation, and may therefore sue on a bond given to the old corporation. Where a corporation is created by an act of parliament for particular purposes and with special powers, its deed, though under the corporate seal regularly affixed, does not bind it, if it plainly appears by the express pi'ovisions of the stat- ute creating the corporation, or by necessary or reasonable, infer- ence from its enactments, that the deed was ultra vires, that is, that the legislature meant that such a deed should not be made, (i) But a corporation is fully capable of binding itself by any contract, except where the statutes by which it is created or regulated, expressly or by * necessary implica- [ * 93 ] tion, prohibit such contract between the parties, (k) Contracts with Trading Corporations. ^ — Where corporations " have been established for the purpose of carrying on trading speculations, and the nature of their constitution has been such as to render the drawing of bills, or the making of any particular sort of contracts, necessary for the purposes of the corporation, the courts have held that they would imply, in those who are, according to the provisions of the charter or act of parliament, carrying on the corporation concerns, an authority to do those acts without which the corporation could not subsist," (I) and to do which it was expressly called into existence. The wants and necessities of a body incorporated for the purposes of trade are, of course, materially different from those of an institution estab- 1 The English rule, that a " general manager" of a railroad has implied author- ity to call a surgeon or physician to heal a person injured on the road, seems disap- proved in New York (Stephenson v. N. Y. &c. R. E. Co., 2 Duer, 341), but has been applied in Illinois to an order given by a "general superintendent" (Cairo, &c. R. R. Co. V. Mahoney, 82 111. 73); while as to station agents and conductors, the opinion seems to be that some proof must be made that they had authority (Tucker v. St. Louis, &c. Ry. Co., 5i Mo. 177; Cooper v. N. Y. Central R. R. Co., 6 Hun, 276), but that slight evidence of special authority is sufBcient (Cairo, &c. R. R. Co. V. Mahoney, &2 111. 73; Indianapolis, &c. R. R. Co. v. Morris, 67 111. 295). (h) Mayor, &c. of Scarborough v. (k) Scottish North-Eastern Ry. Co. Butler, 3 Lev. 237; 7 Q. B. 339. v. Stewart, 3 Macq. H. L. C. 382. (i) Parke, B., South York. Ry. Co. (I) Mayor of Ludlow v. Charlton, 6 V. Gt. Northern Ry. Co., 22 L. J. Ex. M. & W. 821; South of Ireland Colliery 314; 9 Exch. 84. Co. v. Waddle, L. R. 3 C. P. 463; ib. 4 C. P. 617; 38 L.J. C. P. 338. 155 * 94 FOEMATION OF CONTRACTS. [BOOK I. lished for municipal purposes and the government of towns and colleges, or local boards or urban authorities ; (m) and if a trad- ing corporation were unable to contract in the ordinary course of its trade, except under the common seal, its usefulness for trad- ing purposes would be destroyed, and it would be utterly unable to accomplish the object of its existence. It has been held, therefore, that a trading corporation may maintain actions for goods sold and delivered in the usual course of its trade, and may sue upon executory contracts for the supply of goods, for the manufacture and supply of which the company was incorporated, or for the non-acceptance of goods sold and the non-delivery of goods purchased by the corporation, (n) It may also draw and accept bills of exchange and promissory notes, (o) Contracts by the officers of trading corporations are not bind- ing upon the corporation, unless they are within the scope of their regular employment. (21) A station-master, guard, or clerk of an incorporated railway company, for example, has no implied authority to employ surgeons and procure medical attendance for injured passengers ; (q) but the company are liable where their credit is pledged for such services by the general man- ager. (/•) A clerk charged witli the payment of wages, [ * 94 ] or a secretary or law agent of * a company, has no power to bind the company by statements or repre- sentations, acts or proceedings, beyond the limit of his ordinary duties and the scope of his regular employment, (s) Where a contract for the performance of work and the supjDly of materials was entered into under the common seal, and extra work, not included in the contract, was performed, it was held that the (//)) Hunt t!. Wimbledon Local Board, (0) R. r. Biag, 3 P. AVms. 419; Edie 3 C. P. D. 48, C. A.; see also the i-;isi' c. East India Co., 2 Burr. 1216. of Eaton v. Baker, 7 Q. B. D. .529, (p) Williams v. Chester & Holyhead where under the Public Health Act, Ry. Co., 15 Jur. Ex. 828; Cope v. 1875, s. 200, a contract which was in- Thames Nav,, &c., 3 E.xch. 841 ; 18 L. tended to be under £50 turned out more, J. Ex. 345. and it was held not necessary to be un- (q) Co.\ v. Jlid. C. Ry. Co., 3 E.xch. ilei' seal. 273; 18 L. J. E.x. 65. (») City of Lond. f!as f V.. -u. NichoUs, (r) Walker v. Great Western P.y. 2 C. & P. 365; Church v. Imp. Gas Co. Co., L. R. 2 Ex. 228; 36 L. J. Ex. 123. 6 Ad. & E. 859; 3 N. & P. 37; East Ind. (.■<) Burnesu. Fennel, 2 H. L. C. 497; Co. V. Glover, 1 Str. 612; Gibson v. East Olding v. Smith, 16 Jur. 500. Ind. Co., 5 Bing. N. C. 270, 271. 156 CHAP. I.] THE PARTIES. * 94 company was not responsible for the payment of such extra work, as it could not be inferred that they had ordered it. {t) Informal Contracts where the Company has had the Benefit of the Performance of the Contract. — But wherever the purposes for which a corporation is created render it necessary that work should be done or goods supplied to carry such purposes into effect, and orders are given by persons having an apparent gen- eral authority to make contracts for work or goods necessary for the purposes far which the corporation was created, and the work is done or goods supplied and accepted by the corpora- tion, the corporation cannot keep the goods or the benefit of the work and refuse to pay, on the ground that the formality of a deed was wanting, (m) And wherever a company has been incorporated for carrying on a particular business, and services have been rendered in the direct course of the bu,siness which by their charter they were to carry on, and the contract for those services has been recognized and adopted at a general meeting of the company, it is not competent to the company to repudiate their liability and refuse payment for the services rendered, on the ground that the contract was not made in conformity with the provisions of the act of incorporation, (x) Contracts with Registered Joint-Stock Companies.^ — Tlie Companies Act, 1862 (25 & 26 Vict. c. 89), enables seven or more persons, by subscribing their names to a memorandum of association and complying with the requisitions of the act in respect of registration, to form themselves into an incorporated company, with unlimited liability, or with liability limited by shares or by guarantee (y), and prohibits more than ten persons 1 Ewell says that (except in New York, where the subject is governed by- peculiar statutes) unincorporated joint-stock companies throughout the United States are merely co-partnerships, so far as liability of members for contracts made in behalf of the body is concerned ; they differ from partnerships chiefly in the methods and effect of transfers of a member's interest. Love v. Payne, 20 Am. L. Reg. 534, note ; Smith i). Virgin, 33 Me. 148 ; Flagg v. Swift, 25 Hun, 623 ; Abb. Dig. Corp., tit. Associations ; ib. tit. Joint-Stock Companies. (0 Homersham v. Wolverhampton, & Bl. 349; 26 L. J. Q. B. 46; ante, pp. &c. Co., 6 Exch. 137 ; Lamprell v. Bil- * 89, *90, *91. lericay Union, 3 Exch. 283. (y) An unlimited company may reg- (jt) Ante, pp. *89, *90; Pauling v. ister as a limited, and a limited company London &N. West. Ry. Co., 8 Exch. 867. may re-register under 42 & 43 Yict. {x) Reuter v. Elect. Tel. Co., 6 Ell. c. 76. 157 *95 FORMATION OF GONTEACTS. [BOOK I. from carrying on in partnership the business of banking, and more tlian twenty persons from carrying on any other business having gain for its object, [z) unless they are registered as a company under that act or under some previous act, (a) [ * 95 ] or are authorized so to carry on business by * act of parliament, or letters patent, or are engaged in working mines within, and subject to the jurisdiction of, the stannaries. The leading purpose of this statute is to enable a permanent company, consisting of changing members, to make binding con- tracts, and sue and be sued, and do all the usual acts necessary for carrying on trade. The first part provides for the formation of the company through the medium of a memorandum and articles of association, the essential requisites of which relate almost exclusively to the rights and duties of directors and members inter se, regulating the name of the company, the ob- jects for which the company is established, the limited or unlim- ited liability of the members, the amount of the capital, the number and amount of the shares, the transfer of shares, the registration of members, and the meetings and proceedings of the company. After registration of the memorandum of asso- ciation, a certificate of the incorporation of the company is to be granted; and thereupon, by sect. 18, the company becomes incor- porated, having perpetual succession and a common seal, with power to hold lands. The certificate of incorporation is conclu- sive evidence that all the requisitions of the act in respect of registration have been complied with, (h) An assignment of future calls is bad : for calls should be made at the discretion of the directors, and an assignment of future calls prevents the exercise of such a discretion ; but an assignment of a call already made, although not collected, is good, (c) Requisites of Contracts Tsrith Registered Joint-Stock Companies. — Before the passing of the 30 & 'M Vict. c. 131, companies could only contract without seal where the company was a (;) Moore v. Rawlins, 6 C. B. N. s. {b) Oakes v. Turquand, L. E. 2 H. L. 289; 28 L. J. C. P. 247. Farming and 325; 36 L. J. Ch. 949; Peel's case, 36 grazing are businesses having gain for L. J. Ch. 757; L. R. 2 Ch. 674. their object. Harris v. Amery, L. R. 1 (c) Kc Sankey Brook Coal Co., L. E. C. P. 148. 9 Eq. 721; Ee Sankey Brook Coal Co., (a) Wormersley v. Merrit, L, R. 4 Eq. No. 2, L. R. 10 Eq. 381. 695; 37 L.J. Ch. 19. 158 CHAP. I.j THE PARTIES. *96 trading company, and the contract was for a purpose connected with tlie objects of the corporation, {d) But now contracts on behalf of a joint-stock company registered under the 25 & 26 Vict. c. 89, may be made (30 & 31 Vict. c. 131, sect. 37) as follows : — Any contract which, if made between private persons, would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company in writing, under the common seal of the company, and may in the same manner be varied or discharged. If it is such a contract as is required by law to be in writing, and signed by the parties to be charged therewith, it may be made on behalf of the company in writing, signed by any person acting under the express or implied authority of the company, and may in the same manner be varied or discharged. * If it would by law be valid as between private per- [ * 96 ] sons, although made by parol, and not reduced into writing, it may be made by parol on behalf of the company by any person acting under the express or implied authority of the company, and may in the same manner be varied or dis- charged. All contracts so made are binding upon the company and their successors, and all other parties thereto, their heirs, executors, or administrators. The company may, by instrument in writing under their com- mon seal, employ any person (sect. 55), either generally or in re- spect of any specified matters, as their attorney, to execute deeds on their behalf in any place not situated in the United King- dom ; and every deed signed by such attorney on behalf of the company, and under his seal, is binding on the company to the same extent as if it were under the common seal. The 27 Vict. c. 19, moreover enables joint-stock companies carrying on busi- ness in foreign countries to have official seals to be used in those countries. Contracts by Agents. — Where a company, through their direc- tors, hold out an of&cer of the company as their agent for a par- ticular purpose, they cannot afterwards dispute acts done by him within the scope of such agency; (e) but where an advance has (d) South of Ireland ' Coll. Co. v. (e) Wilson v. "West Hartlepool Har- Waddle, L. R. 3 C. P. 463; 4 C. P. bor & Ry. Co., 34 Beav. 187; 2 De G. J. 617; 38 L. J. C. P. 338. & S. 475. 159 * 97 FORMATION OF CONTRACTS. [BOOK I. been made on the personal responsibility of the agents of the company, a subsequent adoption of their acts by the directors will not make the company liable. (/) Contracts in Violation of the Provisions of the Articles of Association. — Parties dealing with the directors of a joint-stock company are bound to take notice that they are dealing with parties having a limited authority ; and they are bound by the limitation of authority contained in the registered articles of association, {g) unless the company at large, or the general body of the shareholders, have sanctioned acts and transactions by the directors in excess of the powers conferred upon them. If on the other hand, the directors have power and authority to bind the company, but certain preliminaries are required to be gone through on the part of the company before that power can be duly exercised, the person contracting with the directors is not bound to see that all those preliminaries have been observed, but is entitled to presume that the directors are acting lawfully in what they do. (A) Unless the memorandum and ar- [ * 97 ] tides of * association of a company contain in plain terms an express power enabling the company to pur- chase their own shares, such purchase is xdtra vires, although the company may be empowered to deal in shares of joint-stock companies generally, (t) If a company has no power to do a particular thing, that power cannot be added to the company by the agreement of the shareholders ; (Z;) but if a company has power to do a thing, and tliere be only requisite a particular formality, sucli as the consent of a general meeting, in order to warrant the exercise of the power, then acquiescence may be in- ferred from delay, and a knowledge of the transaction imputed to every shareholder; (J) and an agreement originally ultra vires (/) Scott V. Lord Ebury, L. R. 2 C. " the business is to be condiicted by not P. 255; 36 L. J. C. P. 161. less than " a specified numlier, the conJi- (g) Balfour ■o. Ernest, 5 C. B. n. s. tion is impirative. Bottomley's case, 624; Shrewsbury (Earl) v. North Staf- 16 Ch. T>. 681. fordshire Ry. Co., L. 1!. 1 Ecj. 593; In re (t) In re London, Hamburg, & Con- Pooley HallC'o., 18AV. K. 201; .see Eng- tinent.al Exchange Bank, Zulueta's lish Channel Co. v. Rolt, 17 Ch. D. 713. claim, L. R. 5 Ch. 444. (h) Royal British Bank v. Turquand, (Ic) Ashbury Carriage Co. v. Riehe, 6 E. & B. 327; Mahony v. East Holy- L. R. 7 H. L. 653. ford Mining Co., L. R. 7 H. L. 869; see (/) British Provident Life & Fire Ins. Irving V. Union Bank of Australia, 2 Soc, In re, 32 L. J. Ch. 326; but see Ap. Cas. 366. Where by the articles Brotherhood's case, 31 Beav. 365. 160 CHAP. I.] THK PARTIES. * 98 cannot be impeached after the lapse of considerable time, (m) Where the deed of settlement of a fire insurance company di- rected that in every policy issued by the directors the funds of the company should alone be made answerable for claims under such policy, and policies were issued by the authority of the di- rectors not confining the liability to the funds of the company, and not complying with the provisions of the deed of settlement in other respects, it was held that the policies were not binding upon the company, (n) But it does not follow that a deed imder the seal of the company bona fide entered into is absolutely void, if any formality which is prescribed by the articles of association has been omitted. To hold this to be the case would have the effect of vesting in these companies " an unlimited power of re- pudiation ;" and this would be an unlimited power to defraud, (o) There may be a breach of duty on the part of the directors in neglecting to comply with certain formalities in respect of which they are responsible to the shareholders ; but it does not follow that the contract is void as against the company, {p) Where a harbor company was empowered by act of parliament to raise money by mortgage, and it was provided that the mort- gages should be entered in the books of the company by their clerks, who were to indorse on such mortgages a memorandum of such entry, and it was also provided that, until the entries and indorsements were made, the mortgages should " not be valid or effectual," and money was borrowed by the company on mort- gage, and the mortgage was entered in the company's books, but no memorandum of such entry was indorsed on the mortgage by the * clerk, pursuant to the requirements [ *98 ] of the act of parliament : it was nevertheless held that the company could not set up their non-compliance with the act in order to defeat the claim of their mortgagee; for it was obvious that the legislature never intended to put it in the power of the (m) Smalloombe's case, L. E. 3 Eq. (o) Ld. Campb., Prince ofWales Ins. 769; 3 H. L. 249; Holdsworth f . Evans, Co. v. Harding, Ell. Bl. & EU. 216; 27 L. R. 3 H. L. 263; see, however, Spack- L. J. Q. B. 307. man's case, L. E. 3 H. L. 171; Stan- (p) Agar u. Athenaeum Life Ass. So., hope's case, L. R. 1 Ch. 161. 3 C. B. N. s. 756; In re Bonelli's Tele- (n) Hambro' v. Hull & London Fire graph Co., L. E. 12 Eq. 246; 40 L. J. Ins. Co., 3 H. & N. 789; 28 L. J. Ex. 62. Ch. 667. VOL. I. 11 161 *98 FORMATION OF CONTRACTS. [BOOK I. company to defeat their own securities by their own default, and so commit a gross fraud, {q) The power of giving a bill of sale as a security for debts is incident to a trading company, although it is not expressly conferred by the articles of association, (r) So also is the power of raising money or giving security for a past debt by deposit of title deeds, (s) Parties who have contracted with the directors of a registered joint-stock trading company, in matters relating to the co-part- nership business, are not bound, wlien seeking to enforce their contracts against the company, to show that the directors were authorized by the articles of association to enter into them. Prima facie the directors have the necessary authority ; and the burden of proving that the directors were restrained by the reg- ulations of the company from making the particular contract sought to be enforced, and from binding the company thereby, lies upon the defendants. If managers, secretaries, or directors are appointed to carry on the business of a trading company, parties dealing with the company are not bound to inquire whether their agents or of&cers are properly appointed or not. If they exercise the duties of their office notoriously, and order goods which are received and used by the company in the ordi- nary course of its business, the company is responsible for pay- ment thereof (t) But if the contract sued upon has no relation to the business carried on by the company, and is not within the scope of any implied authority given for the purpose of man- aging and conducting the business thereof, the plaintiff is bound to prove affirmatively that the directors who profess to bind the company by the contract were duly authorized so to do. This may be done by showing that any particular course of dealing has been sanctioned by the directors and acquiesced in by the shareholders, or that the unusual contract has been sanctioned (?) Jortiu V. S. E. E. Co., 6 De G. Ch. 83; see also English Channel Co. v. M. & G. 270; 24 L. J. Ch. 343; Prince Eolt, 17 Ch. D. 715. of Wales Ass. Co. v. HariUng, Ell. Bl. (t) Smith v. Hull Glass Co., 8 C. B. ^ Ell- 183. 676; 19 L. J. C. P. 125 ; 11 C. B. 897; (r) Shears v. Jacobs, L. E. 1 C. P. 21 L. J. C. P. 110 ; Allard v. Bourne, 513; 35 L. J. C. P. 241. 15 c. B. 472; Levy v. Metrop. Cab Co., (s) III re Patent File Co., L. R. 6 23 Law T. R. C. P. 67. 162 CHAP. I.J THE PAKTIES. * 99 by a board meeting at which the requisite number of directors was present, (m) Persons employed by the directors, of a company to supply goods, or to render any services * for [ * 99 ] the purposes and requirements of the company, cannot be expected nicely to investigate the objects for which they are employed, and to resort in every case to the deed of settlement for the purpose of ascertaining whether those objects are or are not in accordance with its provisions and with the trusts reposed_ in the directors, (v) Where a company has power to enter into a contract for the purchase of goods, it is bound by such contract, although the goods may not be intended to be used for the pur- poses of the company, and although this fact may be known to the person with whom the contract is entered into, (x) But whenever a party dealing with a joint-stock company knowingly combines with the directors to do any act ultra vires to the pre- judice of the shareholders, then the shareholders may very fairly deny their liability, (y) Liability of Shareholders. — Every company limited under the act, whether limited by shares or by guarantee (sect. 41), niust keep its name painted or af&xed in a conspicuous position, and in letters easily legible, on the outside of its office or place of busi- ness, and must have its name in legible characters on its seal and on all its notices, advertisements, and ofticial publications, and in all its bills, notes, indorsements, cheques, orders, bills of parcels, invoices, receipts, and letters of credit. All officers of the com- pany, and persons acting on its behalf, disobeying the statute, are subjected (sect. 42) to various personal liabilities in respect of their contracts and proceedings in the matter, (z) If the com- pany carries on business for a period of six months after the number of the members has been reduced to seven, every person who is a member during that period is liable (sect. 48) for the whole debts of the company then contracted. Effect of the Winding-up Order. — Bona fide dispositions of property of a company in the ordinary course of its trade, made (u) Eidley v. Plym. Grind. &c., 2 {y) Prince ofWales Ins. Co. v. Hard-, Exch. 716; 17 L. J. Ex, 252. ing, Ell. Bl. & Ell. 217; 27 L. J. Q. B. (v) Green v. Nixon, 3 Jur. N. s. 307. 994; 27 L. J. Ch. 819. {i) Penrose v. Martyn, 28 L. J. Q. B. (X) Re Contract Corporation, L. E. 8 28; Ell. Bl. & Ell. 499. Eq. 14. 163 *100 FORMATION OF CONTRACTS. [BOOK I. after the presenting of a petition for winding np, and completed before the winding-up order, will, in the exercise of the discre- tion given to the court by the Companies Act, sect. 153, be con- firmed, {zz) Where, however, such dispositions are incomplete, and rest in contract at the time of the winding-up order, the court has no discretionary power to order the contract to be ful- filled; and the person with whom it was entered into, though he has paid his money, has only a general claim as a creditor for damages in respect of the breach of contract, (a) [*100] *An agreement for a general lien on the goods of a company is determined by the winding-up order, at all events as to after-acquired property. (6) Where a customer of a trading company had bona fide ordered and paid for goods, and the company had loaded the goods on a railway to his address, and sent him the invoices, after the pre- senting of the petition, but before the winding-up order, it was held that the disposition of the property was complete before the winding-up order, and the goods were ordered to be delivered to the customer, (c) Contracts with ofiBcial and other liquidators are regulated by the 23 & 26 Yict. c. 89. {d) A liquidator appointed under a resolution to wind up voluntarily is not personally responsible to the solicitor employed by liim on the affairs of the liquidation for any of the costs of such liquidation, (c) Where a company is being voluntarily wound up, and there are four liquidators, one of them cannot, in the absence of any authority from the company, and solely upon the strength of a general resolution of his co-liquidators, accept bills on behalf of the company. (/) Contracts with Railway Companies.^ — Where a public act of 1 For decisions on the powers of railroad companies or their hoards of direc- tion or managing agents to make contracts, see Ahb. Dig. Corp. , tit. Boards, Con- (zz) See Ince Hall Mills Co. v. Doug- («) In re Trueman's Estate, Hooke v. las Forge Co., 8 Q. B. D. 179. Piper, L. E. 14 Eq. 278; 41 L. J. Ch. (a) Wiltshire Iron Co., In, re, ex 685. parte Pearson, L. Pi. 3 Ch. 443. (/) London & Mediterranean Bank, (I) Wiltshire Iron Co. Lim. v. Great In re, ex. parte Birmingham Banking Western Ey. Co., L. E. 6 Q. B. 101, 776. Co., L. R. 3 Ch. 651 ; 36 L. J. Ch. 807; (c) Wiltshire Iron Co., Inre, L. R. 3 Ex parte Agra & Masterman's Bank, L. Ch. 443. R. 6 Ch. 206; Bolognesi's case, L. R. 5 (d) See sects. 99 & 133. Ch. 567; 40 L. J. Ch. 26. 164 CHAP. I.] THE PAKTIES. * 101 parliament limits and defines the authority of a railway company, and provides for the application of all the funds that come into the hands of the corporation or the directors, a contract for the accomplishment of objects not sanctioned by the act of parlia- ment is illegal and void ; (jj) and the assent of all the sharehold- ers to such a contract, though it may make them all personally liable to perform the contract, will not bind them in their cor- porate capacity, or render liable the corporate funds. (A) Incor- porated railway companies have no existence independently of the acts which create them; and they are created by parlia- ment with special and limited powers and for limited purposes. When, therefore, they exceed, or attempt to exceed, their powers, they are acting in contravention of the law which established them, and in opposition to what courts of justice are bound to consider to have been the intention of parliament in their creation, {i) * A railway company incorporated by a special act of [ * 101 ] parliament, containing the usual clauses inserted in such statutes, cannot draw, accept, or indorse bills of exchange, {k) Contracts by the Promoters of a Rail-way made before Incor- poration, for the purpose of procuring the act of incorporation and establishing the undertaking, cannot be enforced against the company (I) if they are ultra vires of the company ; (?h) but if not ultra vires, they may be enforced, if they have been adopted and acted upon by the company after it has obtained its act of incorporation, (n) or if the engagement is embodied in the act itself. tracts, Kailroad Companies ; Jones, R. R. Securities ; Lacey, Dig. Ry. Dec. ; Pierce, R. R., ch. 19, The Powers of the Corporatio^i ; ib. ch. 2, TJie Direction, &c. ; 1 Redf. Rys., ch. 21, Railway Directors ; ib. ch. 22, Arrangements between Com.pa- nies ; U. S. Dig., tit. Railroad Companies, sect. 276-279; ib. tit. Corporations, V. 3. (c/) Taylor v. Chichester & Midhnrst B. 775 ; 21 L. J. C. P. 23 ; N"orw. v. Ry. Co., L. R. 2 Ex. 356; 36 L. J. Ex. Norf. Ry. Co., 1 Jur. x. .s. 348. 201; Atty.-Gen. v. Great Northeni Ry. (k) Bateman v. Mid-Wales Ry. Co., Co., 1 Drew. & Sin. 154; Atty.-Gen. v. L. R. 1 C. P. 499; 35 L. J. C. P. 205. Great Eastern Ry., 5 Ap. Cas. 473. (I) Caledon. & Dumb. Ry. Co. v. {h) Colman v. Eastern Counties Ry. Helenburgh Mag., 2 Macq. 409. Co., 10 Beav. 1. (m) Shrewsbury (Earl) v. North (t) Shrews, & Birm. Ry. Co. v. Lond. Staff. Ry. Co., L. R. 1 Eq. 593. & N. W. Ry. Co., 22 L. J. Ch. 683 ; (n) Williams v. St. George's Har- East. Angl. Ry, Co. v. East. Co., 11 C. bor Co., 27 L. J. Cli. 691. 165 * 102 FORMATION OF CONTKACTS. [BOOK L The Power of Directors and Committees of Directors to mzike Contracts on behalf of the company may be lawfully exercised as follows : with respect to any contract which, if made between private persons, would be by law required to be in writing and under seal, the committee or the directors may make such con- tract on behalf of the company in' writing and under the com- mon seal of the company, and in the same manner may vary and discharge the same ; with respect to any contract which, if made by private persons, would be by law required, to -be in writing and signed by the parties to be charged therewith, the commit- tee or the' directors may make such contract on behalf of the company, in writing, signed by such committee, or any two of them, or any two of the directors, and in the same manner may vary and discharge the same ; and with respect to any contract which, if made between private persons, would by law be valid although made by parol only, and not reduced into writing, the committee or the directors luay make such contract on behalf of the company, by parol only, without writing, and in the same manner may vary and discharge the same, (o) Directors exer- cising the powers given by these enactments must act together and as a board ; {p) but the enactments are affirmative only, and do not preclude the enforcement against a company of the ordi- nary equity based on part performance, {cf) Informal Contracts for Selrvices by Rail-way Companies. — By sect. 91 of , the Companies Clauses Consolidation Act, 1845, " the determination as to the remuneration of the auditors, treasurer, and secretary shall be exercised only at a general meeting of the company." If, however, the company does not think fit [*102] to make its determination * known at a general meeting, and the directors contract with a secretary to give him a certain salary, and the secretary serves the company under the contract, it is no answer to an action against the company for the stipulated remuneration to say that the remuneration he is to receive has never been determined by a general meeting of the company, (r) (o) 8 & 9' Vict. c. 16, sect. 97. (q) Wilson v. West Hartlepool Ey. ip) D'Arcy v. The Tamar, &c., By. & Harbor Co., 34 L. J. Ch. 241. Go., h. R. 2 Ex. 158. (r) Bill v. Darentli Ey. Co., 1 H. &' N. 30^; 26 L. J. Ex. 81. 166 CHAP. I.] THE PARTIES. * 102 Of Contracts with Co-Partnerships and Associations authorized to sue and be sued in the Name of their Secretary, Treasurer, or Public Officer.! — In order to obviate inconveniences ensuing from changes in the members, and technical objections arising from the non-joinder as plaintiffs in an action upon a contract of all who were partners at the time the contract was entered into, acts of parliament have from time to time been procured, empowering certain banking, trading, insurance, and other com- panies and co-partnerships to sue and be sued in the name of their managing ojfficer, or their treasurer or secretary for the time being, and providing that the actions so brought shall not abate or be discontinued by the death or removal of such nomi- nal plaintiff whilst the action is pending. The right of action of the public officer is not affected by a change in the name of the firm, or the accession of new partners or shareholders ; (s) and it is in general absolutely vested in him, so that the action upon all contracts entered into with the directors and trustees viiist be brought in his name, and not in the names of those who are the actual parties to the contract. (;;) Therefore, where a covenant was entered into with several of the co-partners of such a co- partnership nominatim, it was held that the action upon the covenant must nevertheless be brought by the public ofScer, and that the covenantees could not sue in tlieir own names upon the covenant, the words " shall and may " in the acts creating these 1 New York Laws 1849, 389, cli. 258, authorized joint-stock companies of not leas than seven persons to sue and be sued in name of president or treasurer ; and this provision was, by Laws 1851, 838, ch. 455, extended to companies having joint or common interest or Uahility in any right of action, while 1 Laws 1867, 576, ch. 289, defined the powers of such associations to purchase, hold, and convey property. Decisions on the corporate character and the powers of contracting possessed by companies under these acts are: Crater v. Binninger, 45 N. Y. 595; aff'd 54 Barb. 155; Wright v. Delafield, 23 Barb. 498; Waterbury v. Merchants' Union Express Co., 50 Barb. 157, 3 Abb. Pr. 163 ; Churchill v. Stone, 58 Barb. 233; Bray v. Farwell, 3 Lans. 495; Sandford v. Supen-isors of N. Y., 15 How. Pr. 172; Ebbinghousen v. "Worth Club, 4 Abb. N. Cas. 300; Boston, &c. R. E. v. Pearson, 128 Mass. 445; Dinsmore v. Philadelphia, &c. E. E. Co., 11 Phila. 483. As to similar associations in other States, see Stafford Nat. Bank v. Palmer, 47 Conn. 443; Eichmond Factory Assoc, v. Clarke, 61 Me. 351; Attorney-General v. Mercantile, &c. Ins. Co., 121 Mass. 524; Detroit Schutzen-Bund v. Detroit Agi- tations- Verein, 44 Mich. 313; Ferris v. Thaw, 72 Mo. 446. («) Wilson 0. Craven, 8 M. & W. (0 Steward v. Greaves, 10 M. & W. 584. 719. 167 *103 FORMATION OF CONTEACTS. [BOOK I. co-partnerships and vesting the right of action in the public of&cer being obligatory and not merely permissive, (u) But the power of entering into contracts on behalf of the company is not transferred to such treasurer, secretary, or public officer, but con- tinues to reside with the directors in whose hands the manage- ment of the co-partnership is placed. The extent of the right of action of the public officer generally depends upon the construc- tion of acts of parliament, the words of which are sometimes very large, vesting in him the right to sue upon all contracts in which the company is "concerned or interested," or [*103] which have *been entered into "with any person in trust for the company,'' or " with any person for the use or benefit of the company." {x) Liability of the Public Officer. — The secretary, clerk, or pub- lic officer of a company authorized by act of parliament to be sued in the name of a clerk, secretary, public officer, or other nominal defendant, is not in general personally responsible upon a judgment obtained against him, {y) unless he is a member of the company, and responsible as such upon the judgment, (z) Contracts -with the Managers and Shareholders of Mining Com- panies.^ — Shareholders in mining companies carried on on the 1 The laws governing mining companies vary somewhat in the different States. The doctrine generally recognized is that they have implied or incidental power to contract and to bind themselves to persons dealing with them in matters within the scope of the business and the intent of the charter, even though the act of incorporation does not expressly confer power to incur debts. Wood Hydraulic, &c. Mill. Co. V. King, 45 Ga. 34 ; Moss v. Averell, 10 N. Y. 449 ; Eeadiug, &c. Manuf. Co. v. Graeff, 64 Pa. St. 395. For the extent and limits of this corporate power, see Mahoney Min. Co. v. Anglo-Californian Bank, 21 Am. L. Eeg. N. s. 100 ; Miami Coal Co. v. Wigton, 19 Ohio St. 560 ; Roberts's Appeal, 60 Pa. St. 400 ; Davis V. Flagstaff Silver Min. Co., 2 Utah, 74; Consolidated Gregory Co. v. Raber,' 1 Col. T. 511; Union Gold Min. Co. v. Eocky Mountain Nat. Bank, ih. 531 ; see further Lonkey v. Succor Mill, &c. Co., 10 Nev. 17; Lee v. Pittsburgh Coal, &c. Co., 56 How. Pr. 373; Blanch. & W. Lead. Cas. on Mines, ch. 16. Where the managing officers have been cognizant of a contract made in the name of the company by an employee, and have allowed it to be acted on without (u) Chapman v. Milvain, 5 Exch. 61 ; (x) Skinner v. Lambert, 5 Sc. N. E. 19 L. J. Ex. 228; AViUs v. Sutherland, 197; Smith i>. Goldsworthy, 4 Q. B. 461. 4ib. 211. As to the death or removal of {y) Wormwell v. Hailstone, 4 M. & the officer during the pendency of an P. 512 ; Harrison v. Timmius, 4 M. & action, see Barnewall v. Sutherland, 9 W. 510. ^- E- 380- (z) Harwood v. Law, 7 M. & W. 203. 168 CHAP. I.] THE PARTIES. * 103 cost-book principle are co-adventurers together, but they are not clothed with the ordinary liabilities of co-partners. One shareholder, for example, has no power of binding another by contract, unless he has been appointed a manager of the mine. The shareholders, moreover, are not liable upon bills or notes drawn, accepted, or made by the purser or managers or directors of the company, or for money borrowed by them or their resi- dent agent or manager for the purpose of paying the wages of servants or workmen, or for the general purposes of the associa- tion, (a) And there is not, it seems, as between the managers and directors of the company, any implied authority from one manager to another to draw or accept bills or make promissory notes for the purposes of the company, so as to bind the other managers without their knowledge and express concurrence. (6) But a manager who accepts bills of exchange for the company will himself be responsible upon the acceptance, if he has ac- cepted without any authority from the company on whose behalf he professed to act. (c) Those persons, also, who take an active part in the management of the mine, who personally give orders for the supply of machinery, or who are present at meetings when machinery is ordered, or who receive a share of the profits of the mine, or who agree to furnish capital and receive profits, if profits are realized, are responsible for the payment of the price objecting, this may render it obligatoiy on the corporation. Lee v. Pittsburgh Coal, &c. Co., 56 How. Pr. 873. Independent of special restrictions, the powers of the general agent or superin- tendent placed in actual charge of the mine will be presumed to extend to all the ordinary local business of the enterprise (Adams Min. Co. v. Senter, 26 Mich. 73), and his authority to make any particular contract for the company need not be shown by corporate seal or formal vote (Crowley v. Genesee Min. Co., 55 Cal. 273) ; but he has not implied power to borrow money on the credit of the com- pany, or bind it by a promissory note (Carpenter v. Biggs, 46 Cal. 91 ; Union Gold Min. Co. v. Bocky Mountain Nat. Bank, 2 Col. T. 565); neither has a "sec- retary " such power (Blood v. Marcuse, 38 Cal. 590). A "general superintendent " is not a laborer, servant, operative, &c. within a statute giving laborers and ser- vants recourse against shareholders for unpaid wages. Hill v. Spencer, 61 N. Y. 274; Dean v. De "Wolf, 16 Hun, 186; Krauser v. Ruchel, 17 Hun, 463. (a) Hybart v. Parker, 4 C. B. N. s. M. & W. 252; Dickenson v. Valpy, 10 209; 27 L. J. C. P. 120. B. & C. 128 ; Burmester v. Norris, 6 (i) Eicketts v. Bennett, 17 L. J. C. Exch. 796; 21 L. J. Ex. 43. P. 19; 4 C. B. 686; Hawtayne v. Bourne, (c) Owen v. Van Uster, 10 C. B. 318; 7 M. & W. 595 ; Brown o. Byers, 16 20 L. J. C. P. 61. 169 * 104 FORMATION OF CONTEACTS. [bOOK I. of things ordered and consumed in the ordinary business of the company, (d) Who is a Shareholder. — A written acceptance of shares in a mining company signed by the defendant is evidence [ * 104 ] against him * of his being a shareholder, (e) If his name is entered in the books of the company amongst the names of the shareholders with his knowledge and concur- rence, or if he has admitted that he is a shareholder, there is proof against him of his being a shareholder, although it cannot be shown that he has actually received profits or obtained any dividend upon his shares. (/) If, however, no share in the mine or right to share in the profits thereof has been actually trans- ferred to him, and he is not in reality a holder of shares, and has no legal interest in the concern, and has not acted as an osten- sible partner, he will not be responsible as a partner ; and no acknowledgment made under a mistaken supposition of his own that he is a shareholder when he is not a shareholder will make him liable, unless it were communicated to the plaintiff so as to mislead him. (g) Although the property in mining shares may pass by delivery of the certificates of proprietorship, yet the holder of the certificates does not in general become a share- holder until his name is entered in the share-register book ; and the vendor of mining shares is not in general discharged from liability as a shareholder until his name has been expunged from the book, (/i) Insurance Companies are frequently constituted, and the poli- cies issued by them framed, upon the terms that a certain speci- fied subscribed capital, and the stocks, funds, securities, and property of the company shall alone be liable to make good claims arising upon their policies ; that the directors signing the policies shall not be responsible to any greater extent than the funds or property in their hands or power shall be competent to discharge ; and that no proprietor shall, in any event whatever, {d) Ellis V. Sohmoeck, 3 M. & P. 22n; (c) Toll v. Lee, 4 Exch. 230; 18 L. 5 Bing. 521 ; Steigenberger v. Vnn; 3 J. Ex. 364. Sc. N. E. 466 ; Tredwen v. Bourne, 6 {/) Kalph v. Harvey, 1 Q. B. 845. M. & W. 465 ; Hawkeii v. Bourne, 8 (rj) Vice „. Lady Anson, 7 B. & C. M. & W. 710; Peel v. Thomas, 15 C. B. 411. 714; 24 L. J. C. P. 86. (h) Humbv, ex parte, 28 L. J. Ch. 875. 170 CHA?. I.J THE PARTIES. * 105 be liable beyond the amount of the unpaid part of his share in the subscribed capital stock of the company. When this limita- tion of liability is made an express term of the contracts entered into between the company and third parties, these last are of course bound thereby ; and when the capital stock has been subscribed and expended, the directors and shareholders are re- lieved from liability upon the contract, (i) So long, however, as the shareholders have not paid up the whole of their shares, and the capital stock is not all expended, the directors who seal or sign the policy are liable thereon, and they must provide funds by making calls on the shareholders, (k) Where certain directors of an insurance * company, by policy under seal, [ * 105 ] ordered, directed, and appointed that the capital stock and funds of the company should stand charged with and be liable to pay £500 to the plaintiff, it was held that this was a personal covenant on the part of the directors to pay if the funds proved adequate, and that they were individually liable thereon, unless they could show that the company was insolvent, (l) In a con- tract of this kind the whole body are not made joint contractors, but each individual of the company is bound to make good the loss in the same proportion as his share bears to the total capital, in the nature of a separate underwriter ; and the individual pro- prietors are not responsible for any others than themselves, (m) If the limitation of liability is not made part of the contract with the company, and the parties dealing with the company have no notice of it, they will of course not be bound by it. (w) A policy under the seal of the company cannot be avoided merely by showing that some of the formalities required by the deed of settlement, in order to render the contract binding on the com- pany, have not been complied with, (o) But an ordinary local agent of an insurance company is not, without special authority, (i) Halket v. Mercht. Trad., &c., 13 (m) Hallett v. Dowdall, 18 Q. B. 2 ; Q. B. 960; HasaeU «. ib., 4 Exch. 529; 21 L. J. Q. B. 98; Reid o. Allan, 4 Hickman v. Cambrian, &c. Ins. Co., 28 Exch. 326. L. J. Ex. 379 ; Prince of Wales, &c. {71) Gordon v. Sea, &o. Ins. Soc. , 1 Aiss. Co. and Athenaeum Soc, m re, ib. H. & N. 599 ; 26 L. J. Ex. 202 ; State Ch. 335. Fire Ins. Co., 32 L. J. Ch. 300. (k) Andrews'!). Ellison, 6 Moore, 206. (0) Prince of Wales Ass. Co. v. Hard- (l) Gurney v. Rawlins, 2 M. & W. ing, Ell. Bl. & Ell. 217; 27 L. J. Q. B. 90; Dawson v. Wrench, 3 Exch. 359. 307. 171 * 105 FORMATION OF CONTRACTS. [BOOK I. authorized to bind the company by a contract to grant a policy, (p) Of Contracts with Banking Co-Partnerships.' — The mere shareholders of a co-partnership under the management of 1 The powers of national banks (or their hoards of director or managing agents) to make corporate contracts are conferred by acts of Congress embodied in Eev. Stat. tit. 67. Since the revision, the legislation relative to the banks seems not to have affected their corporate power of contracting in any important partic- ular, except that an act approved July 12, 1882, enables them to extend their coi-porate existence, and increases the penalty for falsely certifying cheques. The chief provisions of the law and the decisions under them are exhibited in Abb. Dig. Corp. Supp. (1878), tit. Baiiks, sects. 10-56; 117-130; 133-141; 147, 148. The cases are conveniently collected in Thomp. Nat. Bank Cas., and Supp. by Browne. See also an article by G. P. Blair, " Limitations on the Powers of National Banks," 6 South. L. Eev. 500. Recent decisions are : Circulating notes do not require Treasury seals. United States V. Bennett, 17 Blatchf. 357. Limits of power to deal in promissory notes. National Pemberton Bank v. Porter, 125 Mass. 333; Attleborough Nat. Bank v. Rogers, ib. 339; First Nat. Bank v. Pierson, 24 Minn. 140; Lazear v. Union Nat. Bank, 52 Md. 78. Right to sue on a note purchased or a loan made without authority. Atlas Nat. Bank ». Savery, 127 Mass. 75; Penn v. Bornman, 26 Alb. L. J. 232. Power to buy and sue on coupons of railroad bonds. First Nat. Bank o. Bennington, 16 Blatchf. 53. Power to manage an exchange of coupon bonds for registered, as agent of bondholder. Yerkes v. National Bank, 69 N. Y. 332. Power to receive money to be invested in municipal bonds for its owner. First Nat. Bank v. Hoch, 89 Pa. St. 324. Power to accept a special deposit, and extent of liability for safe keeping thereof, and for conversion or negligent loss by officers. National Bank v. Graham, 100 U. S. 699; Chattahoochee Nat. Bank t7. Schley, 58 Ga. 369; Pattison v. Syra- cuse Nat. Bank, 80 N. Y. 82, 17 Hun, 419; Gould v. Cayuga County Nat. Bank, 56 How. Pr. 505; First Nat. Bank v. Rex, 89 Pa. St. 30S. Liability for cashier's hypothecating for his own debt stocks intrusted to the bank for sale. WUliamson v. Mason, 19 N. Y. Supni. Ct. 97. Power to guarantee a note. Peoiile's Bank v. National Bank, 101 U. S. 181. Power to lend the corporate credit, or give a guaranty or an accommodation note. Seligman v. Charlottesville Nat. Bank, 3 Hughes, 647; Johnstown v. Charlottesville Nat. Bank, ib. 657. Power to bid for lands at a foreclosure sale. Heath «. Second Nat. Bank, 70 Ind. 106. Power to take lands in satisfaction of debt, and when it may be exercised by president. Libby v. Union Nat. Bank, 99 111. 622. Power to sell immovable property. New Orleans Nat. Bank u. Raymond, 29 La. Ann. 355. Power to take stocks as collateral security. National Bank v. Case, 99 U. S. 628; Baldwin v. Oanfield, 26 Minn. 43. (p) Linford v. Prov. Horse, &c Ins. Co., 34 Beav. 291. 172 CHAP. I.] THE PARTIES. * 106 trustees or directors have no authority to contract for one another, or to pledge the credit of the co-partnership ; (5) but the directors appointed to carry on the business have impliedly all such of the ordinary powers of partners in a common mer- cantile partnership as are necessary for carrying on the business for which the company is formed; and where a banking co- partnership is established, the directors are considered the agents of the shareholders to borrow money for the ordinary purposes of the business, and to give securities in the ordinary form for the money borrowed, unless the power is excluded by the express provisions of the deed of settlement. They have author- ity, therefore, to give promissory notes or to accept bills of ex- change, so as to bind themselves and the other shareholders ; and if there is any objection in point of form to the validity of the bills or notes, the money obtained upon them by the direct- ors may be recovered as money lent to the company. If there is any irregularity in the * transaction, and the [ *106 ] shareholders lie by and acquiesce in the irregularity, they will be deemed to have subsequently ratified the acts of the directors, (r) If the manager of the bank is intrusted with a general power of accepting, making, and indorsing bills and notes, an innocent indorsee will not be prejudiced by any irreg- Power to take a mortgage on accepting renewal of a note. Howard Nat. Bank V. Loomis, 51 Vt. 349. Power to take an assignment of notes secured by mortgage on trust deed of real property as collateral security for a pre-existing debt. Worcester Nat. Bank f. Cheeney, 87 111. 602; Mapes v. Scott, 88 111. 352. Mortgage taken as security for a discount or conveyance of land, voidable on objection of government, but not void. Graham v. Nat. Bank, 32 N. J. Eq. 804; Warner v. De Witt County Nat. Bank, 4 111. App. 305; National Bank II. Matthews, 98 U. S. 621; Thornton v. Exchange Bank, 71 Mo. 221; Fridley v. Bowen, 87 111. 151. Validity of mortgage of lands taken as security for existing and anticipated indebtedness. National Bank v. Whitney, 103 U. S. 99. Penalty or forfeiture for taking usury. Ordway v. Central Nat. Bank, 47 Md, 217; Pickett u Merchants' Nat. Bank, 32 Ark. 346; Cheek v. Merchants' Nat. Bank, 10 Heisk. 618, note; Barnet v. National Bank, 98 U. S. 555; Johnson v. National Bank, 74 N. Y. 329; Gloversville Nat. Bank v. Wells, 15 Hun, 51; Cake V. First Nat. Bank, 86 Pa. St. 303; Bank of Cadiz v. Slemmons, 34 Ohio St. 142 ; First Nat. Bank v. Childs, 130 Mass. 519. (?) Burnes v. Pennell, 2 H. L. C. Bl. 1; 23 L. J. Q. B. 229; Bank of 521. _ Australasia 1;. Bank of Australia, 12 Jur. (r) Maclae v. Sutherland, 3 Ell. & 195. 173 * 106 FORMATION OF CONTEACTS. [BOOK I. ularity in his mode of exercising it ; but if he has only a special and limited authority, and the indorsement conveys an express intimation to that effect, the indorsee must at his peril make inq[uiry as to whether or not the authority has been properly exercised before he advances his money upon, or gives credit to, the indorsement, (s) Banking Co-Partnerships established under the 7 Geo. 4, c. 46, are authorized (sect. 9) to sue and be sued in the name of one of the public officers as the nominal plaintiff or defendant ; and every judgment and decree obtained against the public oflScer is to operate (sect. 12) as a judgment against the co-partnership, and execution maybe issued thereon (sect. 13) against any co-partner for the time being. And if the judgment is not satisfied, it may then be issued against any person who was a member of the co-partnership at the time when the contract on which such judgment was obtained was entered into, or became a member at any time before such contract was executed, or was a member at the time such judgment was obtained, provided leave is granted by the court in which the judgment was obtained, after notice to the person sought to be charged, and before the expira- tion of three years from the time such person shall have ceased to be a member of the co-partnership, (t) Liabilities of Provisional Directors and Committeemen.^ — All persons who take an active part in working out a project, who attend meetings at which resolutions are made or orders given for the employment of agents or servants, or the supply of goods in furtherance of a joint undertaking, render themselves in general jointly responsible for the remuneration and payment of Ihe services rendered or goods supplied in obedience to the orders so given, (m) Every person, also, who holds himself out, 1 See articles by H. 0. Taylor on " Rights and Liabilities arising through the Promotion, &c. of a Corporation," 16 Am. L. Rev. 281; ib. 357; and by R. Cox on "Promoters as Corporate Fiduciaries," ib. 671; also 68 Ind. 344. (s) Alexander v. Mackenzie, 6 C. B. ships carrying on business within sixty- 766; Eyre v. MacDowell, 14 Ir. C. L. R. five miles of London. See also the 27 332; Staggi). Elliott, 12 C. B. N. s. 373; & 28 Vict. c. 32, as to banks which 31 L. J. C. P. 260. have discontinued the issue of their own (t) Parke, B., Dodgson v. Scott, 17 bank notes. L. J. Ex. 326. See the 7 & 8 Vict. c. (u) Braithwaite v. Skofield, 9B. &C. 32, sect. 26, as to banking co-partner- 402; Lake v. Duke of Argyll 6 Q B 174 CHAP. I.] THE PARTIES. * 107 or permits himself to be published to the world, as one of the acting committeemen or managers of a projected com- pany, may become * chargeable to parties who, subse- [*107] quently to such announcement, have dealt with the managing committee ; and all the actual and publicly reputed managers may become responsible upon orders given or con- tracts entered into by the managing committee, at meetings at which they have not been present, but not for things done pur- suant to orders given before they became acting members or managers, (x) Where the plaintiff and the defendants were desirous of starting a company to take the plaintiff's premises and stock-in-trade, and the plaintiff sent a written proposal to the defendants for the sale of his extra stock, and they sent the plaintiff a written acceptance thereof, and the proposal was directed to and accepted by the defendants "on behalf of the proposed G. E. A. H. Co. (Limited)," it was held that, as the company was non-existent at the time of the agreement, the de- fendants were personally liable, and that parol evidence was inadmissible to show a contrary intention, (y) One member of a managing committee has, in general, no authority to bind another member. If the business of the com- pany has always been transacted through the medium of resolu- tions passed by a managing committee and through orders given by the secretary or some accredited officer of the committee, one committeeman would not be responsible for the private and individual orders and contracts of a co-committeeman, or of any of the projectors, or of the secretary, made without the knowl- edge and sanction of the board, and of which he has known nothing until a claim is made upon him in respect thereof The act of a secretary not authorized by the board does not bind the board ; and if authorized by it, it binds only those members who were present and concurred in giving authority to the secre- tary. (2) Where a railway company was projected and a com- 477; Glenester v. Hunter, 5 C. &P. 65; P. 409, n.; Doubleday v. Muskett, 4 M. Kerridge v. Hesse, 9 C. & P. 200; Burls & P. 760. V. Smith, 5 M. & P. 735. (y) Kelner ■«. Baxter, L. E. 2 C. P. (x) Bailey v. Macaulay, 13 Q. B. 827; 174; 36 L. J. C. P. 94. Horsley v. Bell, Arab. 770; 1 Br. C. C. (a) Bumside v. Dayrell, 3 Exoh. 231 ; 101, n. ; Maudslay v. Le Blanc, 2 C. & Rennie «. Wynn, 4 ib. 697. 175 * 108 FORMATION OF CONTRACTS. [BOOK I. mittee of management formed, and the defendant consented to become a member of such committee, and afterwards took the chair at one of its meetings, it was held that he was responsible for the payment of a stationer's bill for pens, ink, and paper supplied by the order of the secretary for the use of the com- mittee, after the defendant had become a member of it. (a) A committeeman is not responsible for things ordered by the soli- citor of the company, unless it be proved that the solicitor acted under an express authority from the committee, (l) If [ *108 ] an authority to contract on behalf of the company * or a committee is vested in eight persons, those who dele- gated to them the particular authority are not bound by the acts and contracts of six out of the eight, (c) The mere attendance of a party at a meeting called to consider the advisability of a scheme, and not to carry it into effect, and at which meeting no orders are given for expenses to be incurred, or for anything to be done for the purpose of working out the project, will not render the party responsible upon orders given at subsequent meetings which he has not attended. And if parties employed by the managing committee or directors are expressly told that they must look to the deposits for remuneration for their services, and that the members of the committee will not hold themselves personally responsible for payment, these last wUl then be protected from personal liability, {d) But if an advance is made on the personal responsibility of the promoters, the sub- sequent adoption of their acts by the directors after the company has been formed will not relieve them from liability. («) A member of a managing committee cannot, of course, be made responsible for the price of goods ordered, or work done, or upon contracts entered into by the committee before he became a member, or held himself out to the world as a member of it, (/) nor after he has retired from the management, {g) Where the {a) Barnett v. Lamtert, 15 M. & W. EennieD. Clark, 5 Exch. 293; Landman 489. V. Entwistle, 7 ib. 632. (b) Cooke V. Tonkin, 16 L. J. Q. p. (e) Scott v. Lord Ebury, L. E. 2 C. P. 153. 255; 86 L. J. C. P. 161. (c) Brown v. Andrew, 18 L. J. Q. B. (/) Beale v. Mouls, 16 L. J. Q. B. 153. 410; Newton v. Belcher, 12 Q. B. 921. (d) Giles V. Smith, 11 Jur. C. P. 334; {g) Maitland, Ex parte, 23 L. J. Ch. 148. 176 CHAP. I.J THE PARTIES. * 109 defendant and others, as provisional directors of a projected company, resolved at a meeting that the company should be advertised in several newspapers, and directed their secretary to take the necessary steps for that purpose, and the secretary accordingly applied to an advertising agent, to whom (on his calling at the company's offices to inquire under what authority the secretary was acting) he showed the prospectus and the above resolutions, it was held that there was evidence that the directors who were parties to the resolutions were respon- sible for the debt thereby incurred, notwithstanding they had been induced to allow their names to appear as directors upon the faith of the secretary's assurance that all the preliminary expenses would be provided for by him and that they would incur no liability, there being nothing to show that the secretary, in giving the orders or in communicating to the plaintiff the resolutions of the directors, had acted beyond the scope of his actual or apparent authority as secretary, {h) But where A con- sented to his name being inserted in a prospectus as a director of a projected company, and on the * prospectus [*109 ] being sent to him by the secretary of the company sug- gested alterations, and also that the company should be adver- tised in a particular newspaper, it was held that there was no evidence that he authorized the secretary to pledge his credit for all the expenses of advertising the company, (t) Po'wers and Responsibilities of Provisional Committeemen. — ■ An association of persons who have agreed to act together as provisional committeemen is not a co-partnership ; and one committeeman is not impliedly the agent of another for the purpose of carrying the common object into effect. The mere fact, therefore, of a person's having agreed to become a member of a provisional committee of a projected undertaking will not render him responsible upon the contracts and for the debts and engagements of such committee ; and the mere announcement of the fact in printed papers and prospectuses, issued by his authority, will not make him liable. " If not responsible as Qi) Maddick -d. Marsliall, 16 C. B. C. P. 536; Collingwood v. Berkeley, 15 N. s. 387; 17 C. B. N. s. 829; Eiley v. C. B. N. s. 145. Pakington, 36 L. J. C. P. 204; L. R. 2 (i) Burbridge u. Morris, 3 H. & C. 664; 34 L. J. Ex. 131. VOL. I. 12 177 *110 FOEMATION OF CONTRACTS. [BOOK I. being one of the committee in fact, lie cannot become so by the representation of that fact." (/.:) A provisional committeeman who has not himself received the deposit paid on an allotment of shares, and who has taken no part in the management of the undertaking, is not responsible for the application of the depos- its by the managers. (/) But if the general management of the business of the company is vested in a provisional committee of management, every member of such committee who takes an active part in the management will be responsible upon the contracts entered into by such committee, (m) If there is both a provisional committee and a managing committee co-existing, the members of the latter are not in general the agents of the former, and their contracts do not bind the members of the pro- visional committee in the absence of express proof of agency, (n) But if a company starts with a provisional committee of man- agement consisting of a great number of persons, all of them taking a more or less active part in the management, and then another smaller managing committee is formed, so that there is both a provisional committee and a managing committee co- existing, and the provisional committee has the appointment of, and the control over, the managing committee, the members of the latter may become the agents of the former, authorized to act for them as well as on their own account, (o) Contracts with Committees of Clubs and Eleemosynary [*110] * Institutions.^ — The members of the managing com- mittee of a club or charity are personally responsible ^ A social club, though without formal constitution ami by-laws, ami without purposes of profit or pecuular}' ailvautaj;!', may be held liable (under New York statutes) as a joint-stock association, or association of seven or more persons hav- ing a common interest. Ebbinghousen v. AVorth Club, 4 Abb. N. Cas. 300. All the members of a club or association formed for social and recreative pur- poses, having n name under which liabilities are incurred, are jointlv liable for debts thus incun'ed ; and each one continues liable so long as he remains a mem- ber, and even after, until he notifies the creditors of the association of his with- drawal therefrom. Park v. Spaulding, 17 N. Y. Supui. Ct. 128. (k) Re}Tiell v. Lewis, Wyld v. Hop- (m) Bailey u Macaulay, 13 Q. B. 815; kins, 15 M. & W. 517; 16 L. J, Ex. 30 ; 19 L. J. Q. B. 73. Barker v. Stead, 3 C. B. 946; Patrick {n) Williams v. Pigott, 2 Exch. 201; V. Eeynolds, 1 C. B. N. s. 727. Dawson v. Morrison, 16 L. J. r. P. 240. (i) Burnside v. Dayrell, 3 Exch. 227; (o) Tanner, Ex parte, 21 L. J. Ch. 19 L. J. Ex. 46. 214. 178 CHAP. I.] THE PARTIES. * 110 for the payment of tradesmen who have supplied goods,- and to servants who have performed work and rendered services, for the benefit of the club or for the advancement of the common objects of the institution, by order of the committee, as the credit is deemed to have been given to the committee rather than to the subscribers at large, who are a constantly fluctuating body, unknown individually to the persons executing such orders, (p) Subscribers who pay an entrance fee on admission to a club, and an annual subscription afterwards, for the purpose of form- ing a fund for defraying the expenses of the establishment, and who appoint a committee to administer such fund, are not them- selves responsible upon the contracts and engagements, or for the debts and liabilities, of such committee, (q) unless it can be shown that they individually concurred in, or assented to, the orders given, or authorized the committee to pledge their credit. As the members of the committee, therefore, in these cases do not bind the subscribers at large by their contracts, or give to the persons whom they have employed a tangible third party to proceed against, they are themselves the only persons who can be sued, and are in fact principals in the transaction, (r) If the managing committee of a club or eleemosynary or literary insti- tution, or any other association of persons, allow the steward or secretary, or any one of the members of the committee, to dis- charge the functions of the whole body, as, for instance, to order supplies of goods on credit or to hire workmen and servants for the use of the institution, they make him their general agent, and clothe him with an implied authority to pledge their credit for the payment of the things ordered and of the people em- ployed by him, within the limits of the ordinary course of deal- ing, unless they have beforehand furnished him with sufficient tTnincorporated stock exchanges, boards of brokers, boards of trade, are neither joint-stock companies nor partnersliips as between the members, though third persons may acquire i» right to hold a member liable for contracts of the societj'. See 21 Am. Law Keg. il3, note. Whether distribution of liquors among members of social clubs is "selling," see Minor v. State, 63 Ga. 318 ; Rickart v. People, 79 111. 85; Slim f. State, 55 Md. 566. (p) Cullen V. Duke of Queensbury, (r) Burls v. Smith, 7 Bing. 705 ; 5 1 Br. P. C. 404; 1 Br. C. C. 101. M. & P. 735 ; Glenester x.. Hunter, 5 (q) Flemvng v. Hector, 2 M. & W. C. & P. 65. 172. 179 * 111 FORMATION OF CONTRACTS. [BOOK I. funds for the purpose, and never permitted him to deal on credit. Where the rules of a coal club were framed so as to make the secretary of the club the agent of all the members for ordering coals, and provided for payment of the coals ordered by an order on the treasurer, signed by the secretary and the chairman of the next meeting held after the delivery of the coals, it was held that the secretary was authorized to pledge the credit of the members, and that they were all responsible for the payment of coals ordered by the secretary, (s) But members of a club [ *111 J are not responsible * upon bills of exchange, or for the repayment of money lent, unless they have expressly sanctioned the drawing or acceptance of bills, or tlie borrowing of money ; (i) nor are they responsible upon contracts made by their secretary or one of their members out of the ordinary course of business, without their knowledge. If goods have been furnished by the orders of one only of the members of the committee of management, it is a question for the jury to deter- mine whether the goods were furnished upon the personal and individual credit of the i^arty actually ordering them, or with the authority and on the credit of the whole body of persons man- aging the institution, (ji) Contracts -with Trustees and Commissioners of Public 'Works. — Commissioners and trustees acting in the execution of statu- tory powers are generally exempted from all personal liability whilst acting within the scope of the statute they are authorized to execute, but are liable to be sued in the name of their clerk or treasurer for the time being ; aud the public funds in their hands, derived from rates they are authorized to impose, are sub- jected to the payment and satisfaction of claims proved against them, (x) (.s) Cockerell v. Aucompte, 2 C. B. breach of such contract nni.^t be against N. s. 4i0; 26 L. ,T. C. P. 194. the clerk, and the amount recovered {t} Earl Mountcashel 1). Barber, 14 must be paid out of the public moneys in C. B. 53; 33 L. J. C. P. 43. tlie hands or under the control of the («) Todd V. Eiuly, 7 M. & W. 427; commissioner.y mandamus to make a rate and apply it in satisfaction and discharge of the judgment debt. Reg. v. Rother- ham, &c., 27 L. J. Q. B. 156 ; Ward V. Lowndes, 29 L. J. Q. B. 40. Where a debt is due, the creditor is entitled to judgment, although there may be no funds for the payment of it, and the creditor may consequently never be able to enforce his judgment by execution. Bush V. Martin, 2 H. & 0. 311 ; 33 L. J. Ex. 17. "Where, by the Lunatic Asylums Act (8 & 9 Vict. c. 126), a select number of justices, called "the committee of visitors," were empowered to contract for plans for the erection of a lunatic asylum, and were enabled to sue and be sued in the name of their clerk, and provisions were made for raising funds by subscriptions and by rates, and resolutions were passed at meetings of the committee offering pre- miums for plans, specifications, and drawings, and appointing an architect, it was held that the committee might be sued in the name of their clerk upon the contracts authorized by these resolutions (Kendall v. King, 17 C. B. 483 ; 25 L. J. C. P. 132 ; Cane v. Chapman, 5 Ad. & E. 652), but that the members of the committee could not be made per- sonally liable upon such contracts (Al- len u. Waldegrave, 8 Taunt. 566 ; 2 Moore, 621), nor could execution upon a judgment recovered against the clerk be issued against him. Wormwell v. Hailstone, 4 M. & P. 512; 6 Bing. 668; but see Cobbett v. Wheeler, 7 Jur. N. s. 260. As to loans for public works, see 38 & 39 Viet. c. 89, amended by 39 & 40 Vict. c. 31, extended by 40 & 41 Vict. u. 19; 41 Vict. c. 18; 42 & 43 Vict. c. 77; 43 & 44 Vict. c. 1. As to loans by Metropolitan Board of Works, see 38 & 39 Vict. c. 65; 39 & 40 Vict, c. 55 ; 40 & 41 Vict. c. 42 ; 41 & 42 Vict. c. 37; 42 & 43 Vict. c. 25; 44 & 45 Vict. c. 48. (?/) Parrot v. Eyre, 3 M. & Sc. 857; 10 Bing. 283. (:) Higgins V. Livingstone, 4 Dow. 355; Eaton v. Bell, 5 B. & Aid. 41. 181 * 113 FORMATION OF CONTKACTS. [BOOK I. was doue on the personal credit of those who gave the order or made the contract, and that the vendor or the workman looked to them for payment, and not to the funds they were authorized to collect, (a) Salaries of Public Officers. — Public officers appointed by trus- tees and commissioners of public works, under the authority of acts of parliament providing that their salaries shall be paid out of the rates to be raised under the authority of the act, cannot render the persons who make the appointment personally respon- sible for tlie payment of the salary, unless they have expressly contracted to pay it. (5) The only claim of such officers is against the rates; and, these failing, they must go unpaid, (c) When commissioners of public works, authorized by statute to appoint an officer, are directed to pay him a salary, they im- pliedly contract, on making the appointment, to pay the salary- out of the funds they are directed to administer, so as to give the officer who has accepted the appointment a riglit to sue them in the name of their clerk or treasurer, (d) and proceed to obtain payment out of the appointed fund ; but the commissioners do not incur any personal liability by virtue of the appointment, unless they have entered into an express contract to pay the salary. Whenever a public body is invested with a discretionary power respecting the amount of remuneration to be paid for a particular service, and no express contract has been entered into by the board to pay any particular sum, the court cannot inter- fere with the exercise of their discretion. Contracts with Local Boards of Health. — The Public [* 113] Health Act * 1875, {>:) by sect. 173, gives power to any local authority to enter into any contracts necessary for carrying the act into execution, and by sect. 174, as to contracts by urban authorities, if over £50, they are to be in writing sealed with the common seal (/), and to specify the work, the price, (a) Horsley u. Bell, Amb. 770 ; 1 Ham Un., 10 Exeh. 875; Addison v. Bro. G. C. 101, n. ; Lambert v. Knott, Mayor of Preston, 12 C. B. 108. 6 D. & R. 122. (d) Hall v. Taylor, 1 Ell. Bl. & Ell. (6) BoggD. Pearse, 10 C. B. 534; 20 113. L. J. C. P. 99; Alexander v. Warman, (c) 38 & 39 Vict. c. 55. 6 H. & N. 100. (/) Hunt v. Wimbledon Local Board, (c) Andrews v. Dally, 4 Bing. 566; 3 C. P. D. 208; ante, pp. * 90, *93. 1 M. & P. 490; Smart v. Guard. West 182 CHAP. I.] THE PARTIES. * 113 the time, and the penalty. An estimate is to be obtained and a report made before a contract of £100 is made, ten days notice and tenders are to be given, and security to be taken. Such contracts duly made will be binding on such authority and their successors, and all other parties, subject to a proviso as to com- pounding. Power to purchase land is given by sects. 175-178, and the mode of reference to arbitration by sects. 179-181. Powers of borrowing money are given to any local authority by sects. 233-244. (g) It was held with regard to the former acts that many of the req^uirements contained in the statutes were directory only, and a strict compliance with them was not to be treated as a condi- tion precedent to tlie liability of the board upon the contracts they had entered into ; for the parties with whom they con- tracted had no means of ascertaining whether every minute requirement of the statute had been complied with by the board prior to the making of the contract, (h) The contract was, how- ever, required to be in writing, and sealed with the common seal, in order to render the contract binding upon the rates, (i) Where the members of a local board of health resolved to oppose a gas bill promoted by a public company, and employed parties to make experiments and to give evidence before a committee of the House of Commons, it was held that the members of the board who had acted in their corporate capacity could not be made personally liable to the parties they had employed, (k) Where a local board entered into a contract for certain work to be done to a street, " the contractor to be paid for the work when and as the money is collected from the owners of the property adjacent," and the board was unable to collect the necessary funds from the owners by reason of the notices served upon them proving informal, it was held that there was an implied undertaking on the part of the board to do all things necessary to enable them to fulfil the contract, and that their inability by ((/) See also the Local Loans Act, (i) Frend v. Dennett, 4 C. B. N. s. 1875, 38 & 39 Vict. c. 83. 683; 27 L. J. C. P. 314. Qi) Nowell V. Mayor, &o. of "Worces- (k) Bailey v. Cuckson, 32 Law T. R. ter, 9 Exch. 467; Cunningham v. Local 124; 7 W. R. Q. B. 16. Board of Wolverhampton, 7 Ell. & Bl. 113. 183 * 114 FORMATION OF CONTRACTS. [BOOK I. reason of the defective notice to collect the necessary funds was no answer to an action by the contractor to recover the cost of the works. (1) [ * 1 14 ] * Contracts with Parish Officers. — Agreements entered into by churcliwardens and parishioners will, under cer- tain circumstances, be binding upon the parish. Thus, where the plaintiff's house was so near the church that the five o'clock bell rung in the morning disturbed her, and it was agreed be- tween her and the churchwardens and parishioners in vestry assembled, that a cupola and clock should be erected by her on the church, and that, in consideration of this being done, the five o'clock bell should not be again rung during her life, and the cupola and clock were accordingly erected, and the bell was silenced for two years, after which time it was rung again, the Court of Chancery held that the agreement was binding upon the parish, and granted an injunction against the ringing of the bell. ()h) But as churchwardens, overseers of the poor, and parish officers have no power of contracting so as to give any right of action against the parish, they are themselves personally respon- sible upon all contracts entered into by them in the exercise of the duties of their office, (n) unless the party they have con- tracted with agrees to look exclusively to the funds of the parish for payment, (o) Where the plaintiff, a baker, supplied bread to the workhouse for the use of the poor, and all the church- wardens and overseers had, at one time or another, concurred in and assented to the orders given for the bread, it was held that they were all equally responsible to the plaintiff for the payment of the price of it. (p) Where several parishioners attending at a vestry signed resolu- tions authorizing the churchwardens to cause the tower of the parish church to be repaired, and the repairs were done, and a rate was made for defraying the expenses, but this rate was quashed, and one of the churchwardens was sued by the work- man, and compelled to pay the whole cost of the repairs, and (I) Worthington v. Siidlow, 34 L. J. (») Kirby v. Banister, 5 B. & Ad. Q. B. 131. 1069; (.'lew v. Petit, 3 N. & M. 456. (m) Martin v. Nutkin, 2 P. Wms. (o) Marsha. Davios, 17 L. J. Ex. 94; 266. ante, p. *108. (p) Lambert v. Knott, 6 D. & E. 122. 184 CHAP. I.] THE PARTIES. * 115 then brought his action against the other churchwarden who had concurred in the orders, for contribution, it was held that he was entitled to recover from him a moiety of the amount he had been compelled to pay. (q) But there is no authority from one parish officer to bind another, resulting from the mere tenure of office. One churchwarden, for example, has no authority as sucli to pledge the credit of his co-churchwardens for repairs to the par- ish church ; and if he gives orders without their knowledge and concurrence, he cannot involve them in the Kability incurred in respect of the execution of such orders, (r) A mere honorary churchwarden, who takes no active part in the manage- ment of the parish affairs, but devolves all the * duties [ * 115 ] of the office upon a paid colleague, cannot be made re- sponsible for the acts and orders of the latter. And an overseer who directs money or goods to be supplied by a tliird party to certain poor people, cannot make his co-overseers responsible for the payment of the goods, unless they have expressly or im- pliedly concurred in such orders or directions, either by being present when they were given, or by being in the habit of attend- ing meetings of the overseers and relievina; officers, at which orders and directions of that description were in the habit of being given, as previously mentioned. Whether the ordering of goods or the hire of servants by one parish officer for the use of the parish creates a contract binding upon his colleagues, is a question of fact depending upon tlie particular circumstances of each case, (s) If a debt is incurred by overseers for legal pro- ceedings in respect of parish business, their personal liability in respect thereof is not transferred, by the 11 & 12 Vict. c. 91, to their successors in office, (t) Overseers of the poor are bound to take care of casual poor within their parishes ; and the law obliges them to reimburse a private individual for expenses necessarily incurred by him in procuring relief and medical attendance for a casual pauper on any sudden emergency, (u) If an accident happens in the parish (q) Lanchester v. Tricker, 8 Moore, 3 Stark. 65; Malkin i). Vickerstaff, 3 B. 20. & Aid. 89. (r) Northwaite v. Bennett, 2 Cr. & (t) Chambres v. Jones, 19 L. J. Ex. M. 316. 238. (s) Eaden v. Titchmar.sh, 1 Atl. & K. (it) Simmons v. Wilmott, 3 Esp. 91. 691; 3 N. & M. 712; Massey v. Knowles, 185 *116 FORMATION OF CONTRACTS. [BOOK I. of A to a pauper belonging to the parish of B, wliich disables the pauper, and he is then removed to his own place of abode in his own parish of B, and attended by the surgeon of that parish, the surgeon may maintain an action against the officers of the parish of A, where the accident happened, to recover a reasonable com- pensation for his medicine and attendance, (x) But the law raises no implied promise from one parish to another in respect of relief and necessaries afforded to casual poor, (y) unless the parish sued has, in some shape or another, sanctioned or authorized the relief. («) An agreement by the churchwardens, overseers, and surveyors of a parish for a lease of land to be converted into gardens for the occupation of the poor is a personal contract of their own upon which they are individually liable ; and they may, consequently, be sued for the rent agreed to be paid to the owner, or for use and occupation, although they have ceased to be parish officers, (a) Moneys borrowed by poor-law guardians may be made a charge on the common fund under the provisions of the 32 & 33 Vict. c. 45, in the manner therein provided. [ * 116 ] * By the 30 & 31 Vict. c. 106, sect. 13, guardians may, with the approval of the Poor Law Board, hire, or take on lease, temporarily, or for a term of years not exceeding five, any land or buildings for the purpose of the relief or employ- ment of the poor, and the use of the guardians or their officers without any order of the Board under seal. The right of action in respect of parish lands and hereditaments is regulated by act of parliament, and is vested either in the churchwardens and overseers of the poor of the parish for the time being, who are empowered to take and hold parish lauds in the nature of a body corporate, (b) or in the guardians of parishes and unions under the 5 & 6 Vict. c. 57, sect. 16, whereby it is enacted that it shall be lawful for every board of guardians constituted under the 4 & 5 Will. IV. c. 76, " to accept, take, and hold, on behalf (x) Tomlinson v. Bentall, 5 B. & C. (a) Uthwatt v. Elkins, 13 M. & W. 745, 8 D. & R. 493; Lamb v. Bunce, 4 772, 777, 5 & 6 Vict. o. 57. M. & S. 275. {b] 59 Geo. III. c. 12, sect. 17; Doe v. (y) Atkins v. Banwell, 2 East, 505. Harpur, 2 D. & R. 708. {z) Paynter v. Williams, 1 Cr. & M. 815. 186 CHAP. I.] THE PARTIES. *117 of the union or parish respectively for which they may act, any lands, buildings, goods, effects, or other property, as a corporation, and in all cases to sue and be sued in their corporate name." The 59 Geo. III. c. 12, sect. 17, vests in the churchwardens and overseers of the parish all buildings, lands, and hereditaments belonging to such parish, not merely where the profits thereof are applicable to the relief of the poor, but where they are applicable to those pur- poses for which church rates are levied, (c) If lands and tene- ments have been originally conveyed to trustees upon trust to apply the rents and profits thereof for the benefit of the poor or towards the repair of the parish church, and the trustees die, and there are no known trustees in existence, the legal estate vests in the churchwardens, and they are the proper parties to bring an action for the rent and for the use and occupation of the prop- erty ; but when there are known trustees in existence, their estate is not devested by the statute and transferred to the churchwardens and overseers, and the latter cannot consequently sue in respect of such lands, (d) The right of action upon cer- tain bonds and securities given to churchwardens and overseers of the poor under the 59 Geo. III. c. 12, sect. 7, continued vested in the churchwardens and overseers for the time being, notwith- standing the 7 & 8 Vict. c. 101, sect. 61. (e) Vestrymen who at- tend parish meetings, and concur in and sign resolutions for the repairs of the church or the parish roads, for the purpose of set- ting the churchwardens and surveyors in motion and authorizing them to act on behalf of the parish, do not incur any individual liability in respect of the carrying out of such resolutions, * and of the orders given by the parish officers founded [ * 117 ] thereon. They have not, like churchwardens, the power of maliing a rate to provide a fund for defraying expenses ; and it is notorious that they attend merely for the purpose of author- izing certain things to be done which are to he paid for by a rate upon the parish; and their own individual credit and respon- sibility are not considered to be in anywise pledged for the pay- ment of the expenses incurred in carrying the vestry resolutions (c) Alderman v. Neate, 4 M. & W. 9 Ad. & E. 255; Ward v. Clarke, 12 704. M. & W. 747. (d) Churchwardens of Deptford i>. (e) Skelton v. Buskby, 4 Exch. Sketchley, 8 Q. B. 394; Allason v. Stark, 545. 187 ' * 118 FORMATION OF CONTRACTS. [BOOK I. into effect. (/) But vestrymen, in vestry assembled, may, like any other persons, exceed their duties as vestrymen, and give their own personal undertaking in respect of the affairs of the parish. Thus, where twenty-four persons in vestry assembled signed a guarantee which was entered in the vestry minute-book to the following effect : "At a vestry meeting held, &c., it was moved and seconded by, &c., that this meeting do highly ap- prove of the proceedings taken by the present surveyor, &c., and do hereby guarantee to him all legal expenses that are or may be hereafter incurred by him in prosecuting the said suit," it was held by Lord Tenterden that all the vestrymen who had signed the guarantee so entered in the vestry minute-book had rendered themselves personally responsible for the fulfilment of their engagement, {g) Surveyors of turnpike-roads, being the mere servants or agents of the commissioners, are not themselves in general responsible for the payment of the contractors and laborers employed upon the road, (/i) Friendly Societies. — Contracts with friendly societies are reg- ulated by the 38 & 39 Vict. c. 60, amended by 39 & 40 Vict. c. 32, and 42 Vict. c. 9. (^) Loans to Friendly Societies. — Where money has been lent to the directors and recognized officers or agents of a friendly soci- ety, and the money has come to the use of the society, and the members have had the benefit of the loan, the society cannot exempt itself from responsibility by showing that the directors have exceeded their borrowing powers, or that certain prescribed formalities annexed to those borrowing powers have not been complied with, [j) Industrial and Provident Societies. — Contracts with industrial and provident societies are regulated by the 39 & 40 Vict. c. 45. By the 11th section of that act, sub-section (3), all moneys pay- able by a member to the society shall be a debt due [ * 118 ] from such * member to the society, and shall be recover- (/) Lanchester v. Trioker, 8 Moore, {h) Pochin v. Pawley, 1 "W. Bl. 670. 20; 1 Biiig. 201; Lanchester i). Frewer, (i) As to contracts which are un- 9 Moore, 688; 2 Bing. 361; Sprott v. authorized but not illegal, see In re Powell, 11 Moore, 398; 3 Bing. 478. Coltman, 19 Ch. D. 64. (g) Heudebowick v. Langton, 3 C. & (j) Pare v. Clegg, 30 L. J. Ch. 747; P. 571. 29 Beav. 589. 188 CHAP. I.] THE PARTIES. * 118 able as such, either in the County Court of the district in which the registered office of the society is situate, or that of the district in which such member resides, at the option of the society ; and by sub-section (12), contracts on behalf of the society may be made, varied, or discharged as follows : — (a) Any contract, which if made between private persons would be by law required to be in writing, and if made according to the English law to be under seal, may be made on behalf of the society in writing under the common seal of the society, and may in the same manner be varied or discharged : (6) Any contract, which if made between private persons would be by law required to be in writing and signed by the persons to be charged therewith, may be made on behalf of the society in writing by any person acting under the express or implied authority of the society, and may in the same manner be varied or discharged : (c) Any contract under seal, which if made between pri- vate persons might be varied or discharged at law or in equity by a writing not under seal signed by any person interested therein, may be similarly varied or discharged on behalf of the society by any person acting under the express or implied authority of the society : (d) Any contract, which if made between private persons would be by law valid, though made by parol only and not reduced into writing, may be made.by parol on behalf of the society by any person acting under the express or implied authority of the society, and may in the same manner be varied or discharged : (e) A signature purporting to be made b}' a person holding any office in the society attached to a writing where- by any contract purports to be made, varied, or dis- charged by or on behalf of the society, shall prima faeie be taken to be the signature of a person hold- ing at the time when the signature was made the ofiice so stated : 189 * 119 FORMATION OF CONTRACTS. [BOOK L And all contracts which may be or have been made, varied, or discharged, according to the provisions herein contained, shall, so far as concerns the form thereof, be effectual in law and bind- ing on the society, and all other parties thereto, their heirs, executors, or administrators, as the case may be. The dissolution and winding up of such societies is provided for by sect. 17. [ * 119 ] * It was held that under the former acts an industrial and provident society was not liable to be sued in its corporate capacity for goods supplied before the registration, although the action was not brought until after registration, (k) Such an action should have been brought against the committee of management. (I) But a society formed under the 15 & 16 Vict. c. 31, and afterward registered under the acts subsequently in force, might sue in its corporate name upon a bond given to the trustees of the society before the passing of the latter acts, (flt) Members of an unregistered society enrolled and cer- tified under the old act (15 & 16 Vict. c. 31), giving a promissory note in the following form for a debt of the society : " Twelve months after date, we, the undersigned, being members of the executive committee on behalf of the L. and S. W. Railway Co-operative Society, do jointly promise to pay," &c., were held personally liable, (n) Contracts with Benefit Building Societies are regulated by the 6 & 7 Wm. IV. c. 32 (societies before 1874), and the 33 & 34 Vict. c. 97, sect. 112 (stamps); and 37 & 38 Vict. c. 42; 38 & 39 Vict, c. 9 ; 40 & 41 Vict. c. 63. A rule empowering the trustees to borrow a limited amount of money for the purposes of the society was held not illegal under the old acts, (o) But now these societies have power under the above acts to borrow money, (j)) Parties who sign promissory notes, or expressly contract in their own names for the repayment of money advanced to a benefit (fc) Linton v. Blakency Joint Co-op- Pickles, 3 H. & C. 857; 35 L. J. Ex. 1; erative Industrial School, 3 H. & C. 853; L. E. 1 lix. 1. 34 L. J. Ex. 211. (ji) Gray v. Eaper, L. R. 1 C. P. (l) Dear v. Mellard, 32 L. J. C. P. 694. 252; 15 C. B. N. s. 19; Toutill v. (o) Laing v. Reed, L. E. 5 Ch. 4. Dougla.s, 33 L. J. Q. B. 66. {p) See 37 & 38 Vict. u. 42, sect. 15. ())!) Queensbury Industrial Soc. v. 190 CHAP. I. J THE PARTIES. * 120 building society, cannot exonerate themselves from personal lia- bility upon their contract merely by describing themselves on the face of it as " trustees " or '• secretary '' for the society, {q) The total amount of the loan must not at any time exceed two thirds of the amount secured by mortgages from its mem- bers, {r) Formerly, even where there was a power given by the rules to borrow money, it was necessarily limited ; an unlimited power of borrowing is invalid, (s) Contracts with Freehold Land Societies. — There is a great distinction between a freehold land society and a benefit build- ing society. A freehold land society buys land with the funds contributed by the members of the society, and then di- vides it amongst * them; but a benefit building society [ * 120 ] advances to its borrowing members money derived from the subscriptions, which the borrowing members themselves lay out in the purchase of lands or buildings, and then mortgage them to the society. A freehold land society, whose rules au- thorize the directors to make speculative investments of the funds of the society in the purchase of estates, to be partitioned and divided amongst the members, cannot be registered as a benefit building society, as its objects are totally different from those of a benefit building society ; and both the directors or trustees who enter into contracts for the purchase of estates, and the members or shareholders who authorize them to be made, may become personally responsible for the fulfilment of such contracts, {t) Salaries of Officers of Friendly Societies. — Surveyors, secre- taries, solicitors, and officers of benefit building societies and industrial and provident societies generally, have notice by the rules of the society that the renmneration for their services to the society is to be paid out of the funds of the society, so that if the society becomes insolvent they have no right to resort for payment to individual members. Officers of this class generally have a much greater interest in the societies to which they are (q) Price v. Taylor, 5 H. & N. ,542; to liability of directors for money bor- 29 L. J. Ex. 331; Mare v. Charles, 5 rowed beyond tbe limit, see Looker v. Ell, & Bl. 981. Wrigley, 9 Q. B. D. 397. (r) Sect. 15. (t) Grimes V. Harrison, 26 Beav. 436 ; (s) Hill's case, L. R. 9 Eq. 605. As 28 L. J. Ch. 823. 191 * 121 FORMATION OF CONTRACTS. [BOOK I. attached than the trustees or directors. In the great majority of cases, they are the persons who get the society up, and at whose request the directors consent to accept office and take upon them- selves the liabilities and duties of their situation; and such officers generally discharge their duties, and perform the services rendered by them to the society, with the understanding, on aU hands, that they are to be remunerated out of the funds of the society; and if the funds fail, these officers must remain un- paid, (u) Contracts witli loan societies are regulated by the 3 & 4 Vict, c. 110, which is made perpetual by the 26 & 27 Vict. c. 56. Contracts ^^■ith registered trades imions are reg\ilated by the 34 & 35 Vict. c. 31, amended by the 39 & 40 Vict. c. 22. (x) Contracts with Infants. ^ — All individuals below the age of twenty-one years are clothed only with a qualified power of con- tracting. By the Infants Eelief Act, 1874, (y) all contracts by infants, whether by specialty or simple contract, for the repay- ment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, are absolutely void. But this enact- [*121] ment does not * invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity enter, except such as then by law were voidable. 1 For limitation.^ of the power of infants to make contracts ; the rights they may acquire and liabilities they may incnr by contracting; their power to pur- chase necessaries, and what are or are not necessaries ; how contracts made during infancy may be avoided or ratified ; and kindred matters, u-o Ewell's Lead. Cas. Infancy, &e., 3-220; U. S. Dig. tit. Infants, I. ; ib. Ann. 1870-1878, tit. Infants; ib. Ann. 1879, &c., tit. Lifnits, II. ; Eeeve, Dom. Eel. tit. Parcnl d- Child, oh. 1-4; Schouler, Dom. Eel. Part V. pp. SlS-.'inS; Tyler, Inf. & Cov, Part I. pp. 33-142. That an infant is not liable in an action on the case for damages for inducing plaintiff, by means of false representations, to buy chattels from him, see also Doran v. Smith, 17 Am. L. Eeg. n. s. 42, and note by E. H, Bennett, ib. 44. As to an infant's engagement to marry, and what facts occurring after majority amount to ratification, see also Ditcham v. Worrall, 20 Am. L. Eeg. N. s. 447, and note by E. H. Bennett, ib. 459. (") Alexanders Worman, 6 H. & N. {y) 37 & 38 Vict. c. 62, sect. 1. At 100 ; 30 L. J. Ex. 198. common law these contracts were not (.)■) As to insurances on the lives of absolutely void, but might have been children, &c., sect. 28 of the 38 & 39 ratified by the infant on attaining his Vict. c. 60 (Friendly Societies Act), ap- majority, plies. 192 CHAP. I.] THE PAETIES. * 121 It was held that notwithstanding the above enactment, and sect. 2 {infra ; and post, p. * 126), an infant debtor trader might, after he has attained full age, be made a bankrupt upon an act of bankruptcy committed during infancy ; (2) but this has been overruled, (a) unless, perhaps, where the infant has expressly represented himself to be of full age. (5). The contracts of an infant are binding upon him during his minority if they are necessary, and for his benefit and advantage, but, speaking generally, may be avoided by him on his coming of age. The contracts of an infant which are not necessary or for his benefit or advantage cannot be enforced against him during his minority ; but at comnion law they might, if not by deed, have been ratified by the infant on his arriving at full age, and could then have been enforced against him. By the 9 Geo. IV. c. 14, sect. 15, such ratification must have been in writing signed by the party to be charged therewith ; and by the Infants Eelief Act, 1874, (c) no action may be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or simple contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age. In deciding whether a contract is or is not for the benefit and advantage of an infant, the court does not always consider the circumstances of each contract. ^^ It has been laid down that certain contracts can under no cir- cumstances be enforced against an infant during his minority. Thus, no penal obligations entered into by infants are enforce- able, as it is not necessary for them, nor can it be for their ben- efit and advantage, to subject themselves to a penalty, {d) All , deeds, also, and covenants, feoffments, grants, releases, confirma- tions, cognovits, or other writings under seal made by infants, are, as a general rule (subject to some few exceptions presently noticed), not binding ; (e) and an infant cannot be sued on his (2) Expttrte Lynch, 2 Ch. D. 229. bray, 8 East, 330; Baylis v. Dinely, 3 (a) Ex parte Jones, 18 Ch, D. 109. M. & S. 477; Stikeman i,. Dawson, 16 (b) Per Lush, L. J., Ex parte Jones, L. J. Ch. 205; see however Wood v, mpra; but seepost, p. * 122, n. (Z). Fenwick, 10 M. & W. 195. (c) 37 & 38 Vict. c. 62, sect. 2. (e) Co. Litt. 171 h; Oliver v. Wood- (d) Co. Litt. 172 a; Fisher v. Mow- rofife, 4 M. & W. 650. 1* See Appendix, Vol. III. 193 VOL. 1. 13 * 122 FOKMATION OF CONTKACTS. [BOOK I. covenant to serve contained in an indenture of apprenticeship executed by him; (/) nor on a bill of exchange accepted [*122] by him, although the * bill may have been accepted on account of necessaries furnished to such infant ; {g) nor on a contract of suretyship ; (A) nor for a breach of warranty made by him on the sale of a horse ; (i) nor is he bound by an agreement to refer disputes to arbitration, nor by the recitals in any deed executed by him during infancy. Qt) If the infant has induced another party to contract with him by falsely represent- ing that he was of age, he is nevertheless not precluded from setting up his infancy as an answer to any action founded on such contract. {I) Contracts also entered into by infants in the exercise of a trade cannot be enforced against them ; for the law does not con- sider it to be necessary or beneficial for infants to embark in trade and hazard their fortunes in commercial speculations. An action, consequently, cannot be maintained against an infant who carries on trade, for work done for him, or for the rent of houses and buildings hired by him in the course of that trade, although he gains his living thereby. (»i) An agreement with an infant workman which binds him to serve during a certain term, but leaves the master free to stop his work and his wages whenever he chooses, is not beneficial to the infant. («) A plain- tiff cannot convert a breach of duty arising out of a contract into a tort so as to charge an infant in an action ex delicto. Therefore, if a horse lent to an infant is immoderately ridden by the latter and is injured, the infant is protected from liability by his infancy, (o) And an infant innkeeper is not liable for the (/) Gylbert v. Fletcher, Cro. Car. (I) Bartlett v. "Wells, 1 B. & S. 836; 179. 31 L. J. Q. B. 57; De Koo v. Foster, 12 (g') Williams -o. Harrison, Carth. C. B. n. s. 272. But see (6), p. ♦ 121. 160; ■WillianiBon v. Watt, 1 Campb. (m) Dilk v. Eeighley, 2 Esp. 480 ; .'551; Harrison v. Cotgreave, 16 L. J. Whittingham v. Hill, Cro. Jac. 4fl4 ; C. P. 1P8. Whywail v. Champion, 2 Str. 1083; {h) Maples v. Wightman, 4 Conn. Lowe v. Griffith, 1 Sc. 458; 1 Hodg. 376; Allen v. Minor, 2 Call, 70. 30 ; Mason v. Wright, 13 Met. 306. (0 Howlett V. Haswell, 4 Campb. («,) Reg. v. Lord, 12 Q. B. 765; see 118; Green v. Greenbank, 2 Marsh. Leslie «. Fitzpatrick, 3 Q. B. D. 229. 485; Grove u. Nevill, 1 Keb. 778. (o) .Jennings v. Rundall, 8 T. R. (i) Watson's Arbitr. 40, 41, 42; 335; Green v. Greenbank, 2 Marsh. Milner v. Lord Harewood, 18 Ves. 274. 485. 194 CHAP. I.] THE PARTIES. * 123 loss of the guest's goods, (p) But if the act of the infant is not an abuse of a contract, but a wrong actionable per se, he will not be protected from the consequences, {q) Hights Ex Contractu of Infants. — "Infancy is a personal privi- lege, of which no one can take advantage but the infant himself; and, therefore, though the contract of the infant be voidable, yet it shall bind the person of full age.'' (r) Therefore, in cases of promises of marriage, contracts of purchase and sale, and con- tracts for the performance of work, the adult contract- ing party is * bound and maybe sued by the infant, [*123] although the latter has incurred no corresponding legal obligation, (s) But an infant cannot obtain a decree for a specific performance of a contract against an adult contracting party, (t) An infant cannot be compelled to complete a contract for the purchase of an estate ; but if he has paid a deposit under such a contract, he cannot recover it back merely because he declines to complete the purchase, (w) When an infant has brought an action by his next friend, and has recovered damages which have been received by the attorney, the money is the money of the infant, and he may sue the attorney for it. (x) Contracts Binding upon Infants. — Infants are not rendered absolutely incapable of contracting so as to bind themselves; for " the law, at the same time that it protects their imbecility and indiscretion from injury, enables them to do certain binding acts for their own benefit. They may grant leases when it is manifestly to their, interest and advantage that leases should be granted ; and they will not be permitted to avoid them when they come of age ; for the privilege is given as a shield, not as a swoiiD, and shall never be turned into an offensive weapon of fraud and injustice." (y) By the 11 Geo. IV. and 1 Will. IV. c. 65, (p) Eolle, Abr. 1 ; 2 Action Sur (i) Flight v. BoUand, 4 Euss. 298. Cas. D. 3. (u) Wilson v. Kearse, Peake's Ad. {q) Burnard v. Haggis, 14 C. B. Cas. 196. N. s. 45 ; 32 L. J. C. P. 189. {x) Collins v. Brook, 4 H. & N. 276 ; (r) Bac. Abr. Infants (T ) 4; 28 L. J. Ex. 1 43 ; £a; ^arte Brocklebank, Farnhara v. Atkins, 1 Sid. 446 ; Holt 6 Ch. D. 358. V. "Ward, 2 Str. 937 ; 2 Barn. 173. (y) Zouch v. Parsons, 3 Burr. 1801 ; (s) Warwick v. Bruce, 2 M. & S. Maddon v. White, 2 T. E. 161 ; Allen 205 ; 6 Taunt. 118 ; Forrester's case, 1 v. Allen, 2 Dr. & W. 307, 340 ; Staton Sid. 41 ; IKeb. 1 ; Davis ii. Manington, v. Brady, 14 Ir. C. L. 61. 2 Sid. 109. 195 * 124 FORMATION OF CONTRACTS. [BOOK I. sects. 16 and 17, infants are empowered to grant renewal of leases, and the Court of Chancery may authorize leases to be made of lands belonging to infants for the benefit of the estate. There- fore, if an infant contracts for necessary repairs to be done to his dwelling-house, he will not be allowed to avail himself of his infancy as an answer to a fair claim for the payment of the price of the work so done, (z) By the custom of gavelkind, an infant at the age of fifteen is reckoned at full age to sell his lands, but under great limitations and restrictions, to prevent his being defrauded. And by custom in some places, an infant .seised of lands in socage may, at the age of fifteen years, make a lease for years which shall bind him after he comes of age ; for the custom makes fifteen his full age for that purpose, (a) Contracts by Infants for Necessaries. — " If an infant lives with his parent, who provides such apparel as appears to the parent to be proper, so that the child is not left destitute of clothes or other real necessaries of life, the child cannot bind him- [*124] self to a stranger * even for what might otherM'ise be allowed as necessaries." (&) If he orders clothes of a tailor, and they are sent to the father's residence, and the latter disapproves of the proceeding and sends the clothes back, the tailor will have no claim against anybody for the payment of the price of them. He cannot sue the parent, because he has not sanctioned or authorized the contract ; (c) neither can he sue the infant ; for, as the latter was provided for in the father's house, he was under no necessity of contracting for the purchase of goods on his own credit. If, however, the parent was aware of the order and of the delivery of the goods, and saw the infant using and wearing the articles, and made no objection thereto, and did not exercise his parental authority and control to prevent further supplies of such articles, this will be strong evidence to show that the father authorized the order to be given, so as to render him responsible as the principal in the transaction, and the real (=) Smith V. Low, 1 Atk. 489 ; Ash- (e) Blackburn v. Mackey, 1 C. & P. field V. Ashfield, Wm. Jones, 157. 1 ; Fluck v. ToUemache, ib. 5 ; Crantz (a) Bac.Abr. Inf. A.; Co. Litt. 45, b. v. Gill, 2 Esp. 472 ; Rolfe v. Abbott, 6 (i) Bainbridge v. Pickering, 2 W. C. & P. 286 ; Clements v. Williams, Bl. 1325 ; Cook v. Deaton, 3 C. & P. 8 ib. 58. 114 ; Story v. Perry, 4 ib. 626. 196 CHAP. I.] THE PARTIES. * 125 purchaser of the articles through the medium of his child acting as his agent in that behalf, {d) If an infant is placed at a board- ing-school by a parent or guardian, the master has not in general any remedy against the infant, but must resort to those with whom he agreed for the infant's board and instruction. («) Infants not residing under the Parental Roof, and not provided by their parents with the necessaries of life, may bind themselves by contract to pay for their necessary meat, drink, apparel, physic, good teaching, and instruction. (/) It has been said that an infant may enter into a contract under seal " for his necessary meat and drink, or his necessary apparel, or his fit schooling, and shall not avoid the same ; " {g) but such contracts would at the present day be regarded with great jealousy and suspicion. And a deed to secure the repayment of money advanced for necessa- ries has been held voidable, although the infant was ordered to pay the money due. (li) The infant cannot bind himself to the payment of any particular sum for necessaries, or to give any particular price for them ; for the law does not leave the deter- mination of the amount to the infant, but intrusts it to the arbitration of a jury, {i) From the earliest times down to the pres- ent the word " necessaries " has not been confined in its strict sense to such articles as are necessary for the support of life, but extended to * articles fit to maintain the par- [*125] ticular person in the state, station, and degree in life in which he is. (Jc) Thus, an infant may be made liable for the rent of a fit and proper lodging, (J) also for lace, silks, and wed- ding garments suitable for a person of his rank in life, (m) and for food, clothing, groceries, nursing, attendance, and neces- saries furnished to his wife and family and infant children id) Baker v. Keen, 2 Stark. 502 ; (h) Martin v. Gale, 4 Ch. D. 428. Nichole v. Allen, 3 C. & P. 36 ; Hes- (t) Cas. Law & Eq. 185. keth V. Gowing, 5 Esp. 132 ; Law v. (Jc) Peters u. Fleming, 6 M. & "W. Wilkin, 6 Ad. & E. 718 ; Mortimore v. 46. Wright, 6 M. & W. 485. (I) Kirton v. Elliott, 2 Bnlstr. 69 ; («) Duneomb v. Tickridge, Aleyn, Evelyn v. Chichester, 3 Burr. 1719. 94 ; Bae. Abr. Inf. (1.) 1. (m) Rainsfordw. Fenwiek, Cart. 215; (/) Bae. Abr. Jn/aMj/ (L ) ; Cooper Dalton e. Gib, 5 Bing. N". C. 198; V. Simmons, 7 H. & N. 707 ; 31 L. J. Brayshaw v. Eaton, lb. 234 ; 7 Se. M. C. 138. 183. {g) Perkins, sect. 14 ; Russell ». Lee, 1 Lev. 86. 197 *125 FORMATION OP CONTRACTS. [BOOK I. residing with him, («) but not for premises hired to carry on trade, (o) Things held not tx> be Necessaries.^ — The question as to what things are, and what things are not, necessaries suitable for an infant who is living away from the parental roof, and supplies his own wants from funds of which he has himself the management, is a mixed question of law and fact, to be determined by the par- ticular circumstances of each case. There are, however, many things which cannot be necessary for the use of an infant under any circumstances, and respecting which no valid contract can be entered into, {p) Thus, articles of mere luxury cannot be neces- saries suitable to the condition of any infant But articles of utility; although luxurious and expensive, may be ; and whether they are so or not is a question for the jury in each particular case, subject to the preliminary question whether there is evi- dence on which they may reasonably and properly conclude that the articles in question are necessaries, (g) If the infant be an invalid, and horse or carriage exercise is recommended by a medical man, and is resorted to by the infant for the restoration of his health, it will be considered necessary, and the infant will be bound to pay for it. (r) Things which may, or may not, be Necessaries, according to Circumstances. — The infant's clothes may be fine or coarse according to his rank ; his education may vary according to the station he is to fill, and the extent of his probable means when of age ; and the nature and number of his servants and attendants will depend upon his position in society, (s) Expen- sive uniforms are necessary for infant officers in the Guards, (t) 1 As to what are or are not necessaries generally, see 2 Abb. L. Diet. Necessary; necessaries with respect to infants, see Ewell's Lead. Cas. Infancy, &a., 62-75, note ; Keeve, Dom. Rel. 227 ; Schouler, Dom. Eel. 548-552 ; Tyler, Inf. & Gov. sects. 69, 70 ; ib. sect. 73 ; U. S. Dig. tit. Infants, sects. 130-163. (n) Bacon's Maxim, E. 18, p. 67, ed. {q] Ryder v. Wombwell, L. K. 4 Ex. 1639 ; Chappie v. Cooper, 13 M. & W. 32 ; 38 L. J. Ex. 8. ^^^- (r) Coleridge, J., Wharton v. Mac- (o) Lowe V. Griffith, 1 Sc. 458 ; ante, keuzie, 5 Q. B. 612, 613. P- 122. (s) Aldevson, B., Chappie i>. Coopei, {}}) Brooker v. Scott, 11 M. & W. 13 M. & W. 258 ; Hands v. Slauey, 8 67; Wharton v. Mackenzie, 5 Q. B. 606; T. E. 578. Bui'ghart v. Angersteiu, 6 C. & P. 698; {t] Burghart v. Hall, 4 M. & W. Charters v. Bayutum, 7 ib. 52. 730. 198 CHAP. I.] THE PARTIES. * 126 and the ordinary volunteer regimentals to infant members of a volunteer corps, (u) Silks, furs, and velvets may be necessary for a young lady of rank * and station in [ * 126 ] society, and a gold watch-chain and gold breast-pins for the use of the son of a gentleman of fortune, (x) A proper mar- riage settlement also is necessary for a female infant of rank and station about to be married ; and she may therefore retain an attorney to draw it up. (y) If an infant widower gives directions for the funeral of a deceased wife, he is personally responsible for the expenses thereof ; and the same liability arises in the case of an infant widow who has given an order to an undertaker for the burial of a deceased husband, although the latter may have died in insolvent circumstances. (2) Infant Purchasers of Estates and Railway Shares. — An infant purchaser of real estate who has taken possession, becomes liable to all the obligations attached to the estate, to pay rent in the case of a lease rendering rent, and to pay a fine due on admission in the case of a copyhold to which the infant has been admitted, unless he has elected to waive or disagree to the purchase alto- gether, either during infancy or after full age, at either of which times it is competent for an infant to do so. (a) An infant who acquires railway shares is in the same situation as an infant acquiring real estate or any other permanent interest. If the infant repudiates the shares during his infancy, or as soon as he comes of age, he is not liable for the payment of calls made dur- ing his infancy ; but if there has been no such waiver or repu- diation, and he continues to hold the shares after he becomes of age, he is liable for calls made on those shares during infancy, without any act of ratification on his part ; and a plea of infancy at the time the calls were made is bad. (b) A transfer to an infant of shares in a company which becomes insolvent before (u) Coates v. Wilson, 5 Esp. 152. {b) London & North West. Ey. Co. (x) Daltoni). Gib, 5 Bing. N. C. 198: v. M'Michael, 5 Exch. 123; 20 L. J. Brayshaw v. Eaton, ib. 231 ; Ford v. Ex. 99 ; Newry & Ennis Ry. Co. v. Fothergill, Peake, 301. Coombe, 3 Exch. 565 ; Dublin & Wick (y) Helps D. Clayton, 17 C. B. N. s. Ey. Co. u. Black, 8 Exch. 181 ; Mitch- 653 ; 34 L. J. C. P. 1. ell's case, L. E. 9 Eq. 363 ; 39 L. J. Ch. (2) Chappie V. Cooper, 13 M. & W. 199 ; Ebbett's case, L. E. 5 Ch. 302; 39 259. L. J. Ch. 679. (a) Co. Litt. 2, b, 199 » 127 FORMATION OF CONTKACTS. [BOOK I. the infant attains his majority, will be treated as a nullity, and the transferor will remain liable, (c) Avoidance of Contracts made during Infancy. — By the Infants Eelief Act, 1874, sect. 2, no action (d) shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new considera- tion for such promise or ratification after full age. (e) [ * 127 ] This section * applies to ratifications made after the passing of the Act of Contracts, entered into before the passing of the act. (/) A judgment obtained by default, after majority, upon a bill of exchange given during minority, is a ratification within the act, and cannot be enforced in bank- ruptcy. (/) Where the defendant promised to marry, and after- wards, on coming of age, recognized the promise without expressly making a fresh promise, it was held that the act ap- plied, and the plaintiff was nonsuited, (g) " If an infant make a deed, and deliver it within age, and afterwards, upon his com- ing of full age, deliver it again, yet the deed is void ; for the deed must take effect from the first delivery, or not at all." As regards leases, however, if the infant accepts rent from the lessee, and does acts affirmatory of the contract, the lease will prima fame be deemed to have been a necessary and beneficial lease, and will be valid and binding. If, on the other hand, the infant repudiates the contract on his attaining his majority, this will be evidence the other way. Where the obligation is incident to a beneficial interest in property, the obligation cannot be avoided and the interest retained. If an infant lessee remains in posses- sion of property demised to him, and pays rent after he attains his majority, he cannot afterwards repudiate the lease. He be- comes chargeable, moreover, with all the arrears incurred during his minority; for though at full age he might have departed (c) Capper's case, L. R. 3 Ch. 458; (/) Ex parte Kibble, L. E. 10 Ch. Mann's case, ib. 459, n. 373. (d) See a doubt suggested in Dart's {g) Coxhead v. Mullis, 3 C. P. D. Vendors & Purchasers, as to whether the 439 ; as to what amounts to a fresh prom- act applies to suits for specific perform- ise, however, see Northcote v. Doughty, ance. 4 C. P. D. 385, and Ditcham v. Worrall, (c) 37 & 38 Viet. c. 62, sect. 2. 5 C. P. D. 410. 200 CHAP. I.] THE PAKTIES. * 128 from the bargain, and thereby have avoided payment of tlie arrears which the lessor suffered to accrue during the minority, yet his continuance in possession after his full age ratifies and affirms the contract ah initio, and so gives a remedy for the arrears of rent incurred from the time of the contract made, (h) So an infant who has taken possession of land under a contract of sale, and after coming of age has continued in possession and exercised acts of ownership, cannot avoid payment of the con- sideration, (i) Extortionate Contracts with Expectant Heirs (k) by creditors who take advantage of the pecuniary necessities of such heirs will be set aside, and the jurisdiction of the courts is not taken away by the 31 & 32 Vict. c. 4, sect. 1, by which no purchase (which by sect. 2 is to include every kind of contract, conveyance, or assignment under or by which any beneficial interest in any kind of property may be acquired), made bo7ia fide and without fraud or * unfair dealing {I) of any reversionary [* 128 ] interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue, (m) A person collaterally responsible for an infant cannot avail himself of the infancy of the principal debtor, (w) And the indorsee of a negotiable instrument may maintain an action against the maker or acceptor, though the indorser is an in- fant, (o) Contracts -with Young Persons : Undue Influence. — The courts will prevent young persons subject to undue influence from entering into imprudent contracts without proper advice, and (Ji) Baylis v. Dineley, 3 M. & S. 477 ; 484, 491; Beynon v. Cook, L. K. 10 Ch. Bac. Abr. Inf. (A.); (K.) 8 ; Smith v. 389. Low, 1 Atk. 489; Ketsey's case, Cro. (m) Milleru. Cook, L. K. 10 Eq. 641; Jac. 320; Kirton o. Eliott, 2 Bulstr. Tyler f. Yates, L. R. 11 Eq. 265; ib. 6 69. Ch. 665; 40 L. J. Ch. 11, 768. See how- i'i) Henry v. Root, 33 N. Y. 526. ever O'Rourke v. Bolingbroke, 2 Ap. Qc) The doctrine extends to young Cas. 814, as to the effect of the statute, people who are supposed to be well off, per hd. Blackburn; see also Beynon w. and where the money is lent in hope of Cook, L. R. 10 Ch. 385; In re Slater's extorting payment from the father, Trust, 11 Ch. D. 227. Neville v. Snelling, 15 Ch. D. 679. (n) Hartness v. Thompson, 5 John. (I) Which means an unconscientious 160. use of the power arising out of the cir- (o) Hardy i>. Waters, 38 Maine, 450; cumstances and condition of the parties. !Nightingale v. Withington, 15 Mass. Earl of Aylesford v. Morris, L. R. 8 Ch. 273. 201 * 128 FORMATION OF CONTKACTS. [BOOK I. of which they cannot appreciate the bearings, {p) and a vohin- teer or any person with notice taking an assignment of such contract will be liable to have the same set aside, {q) Of the Obligation of Parents to provide for their Children. ^ — By the common law, a father who gives no authority to another, and enters iuto no contract, is no more liable for goods supplied to his child than a brother or an uncle or a mere stranger would be. " In order to bind a father in point of law for a debt incurred by his son, you must prove that he has contracted to be bound, just in the same naanner as you would prove such a contract against any other person ; " (?■) but the 43 Eliz. c. 2, sect. 7, for the relief of the poor, provides that the father and grandfather, and mother and grandmother, and the children of every poor, old, blind, lame, and impotent person, or other poor person not able to work, being of sufticient ability, shall at their own charges relieve and maintain every such poor person; and the 4 & 5 Wm. IV. c. 76, sect. 56, provides that all parish relief given to the wife or to a child under the age of sixteen, not being blind or deaf or dumb, shall be considered as given to the husband or parent, as the case may be, and may be treated (sect. 58) as a loan to the lat- ter, and may be recovered in the mode thereby appointed (sect. 59). A child left to starve, therefore, must apply to the parish, and ' The obligation of a father to maintain his children extends to a stepchild if he has in fact taken it into his family as a child; for when a man voluntarily stands in loco parentis he is entitled to the rights and subjeit to the liabilities of the relation. Williams v. Hutchinson, 3 N. Y. 312; Bradford ;;. Bodfish, 39 Iowa, 681. But the obligation of a father is in general subject to the limitation that in a proper case, where the means of the father are not sufficient to enable him to give the child a proper maintenance and education, and the child has an estate of its own, the court will order an allowance to the father out of the child's estate. Tyler, Inf. & Cov. 2d ed. sect. 191; 5 Wait, Act. & Def. 52; 2 Kent Com. 189. Hence on settlement of accounts as guardian of one who is stepfather of his ward, the court has discretionary power, on a full presentation of all the facts, to grant him an allowance from the income of the estate for the cost of the ward's support and education. Gerdes v. Weiser, 54 Iowa, 591. On the validity of contracts for the relinquishment of parents' right of custody of child to a third person, see 26 Alb. L. J. 26. (ip) Kempson v. Ashbee, L. R. 10. Ch. pie, 33 Law J. Q. B. 1; 4 B. & S. 491. 15. Where the child is living with its mother (j) Baiubrigge v. Browne, 18 Ch. D. under an order of the Court of Chancery, 188. see Bazeley v. Forder, L. R. 3 Q. B. (r) Ld. Abinger, Mortimore v. Wright, 559. 6 M. & W. 487; see Ruttinger v. Tom- 202 CHAP. I.] THE PARTIES. * 129 the parish will compel payment of subsistence-money from the parent, (s) * Contracts with Executors.^ — An executor may sell or [ *129] pledge the assets of the testator, (t) and may also sell part of the assets at a fixed price to a creditor of the testator to clear the debt, (m) He has, in fact, complete and absolute con- trol over the property of the testator, (ic) notwithstanding it may be affected with some peculiar trust or equity in his hands ; for the purchaser cannot be presumed to know that the sale may not be required in order to discharge the debts of the testator to which his property is legally liable before all other claims. But if the purchaser knows that the executor is converting the estate into money for an unlawful purpose, the purchase will be set aside, (y) Thus if a creditor of the executor buys or receives in pledge any part of the personal assets, not for money advanced at the time, but in satisfaction of his deljt, he is, generally speak- ing, a party to the breach of trust by the executor, because this sale or pledging is prima facie inconsistent with the duty of an executor, {z) If an executor or administrator takes a bond or contract under seal in his representative character, this is an obligation strictly personal to himself, upon which he can recover only in his .own right. But if the personal representatives, in the course of their administration, have themselves entered into simple contracts upon whicli a right of action has accrued, and the money when recovered would be assets, they may sue in their representative capacity, (a) Thus, where executors carry on the business of ' How far executory contracts made by the decedent must be performed by or are a ground of action against the executor or administrator, see Swansey v. Breck, 10 Ala. 533; Eubanks v. Dobbs, 4 Ark. 173; Smith v. Wilmington Coal Min., &c. Co., 83 111. 498 ; Ewing v. Handley, 4 Litt. 346; Woods v. Eidley, 27 Miss. 119; Davis V. Lane, 11 N. H. 512; Lee v. Highland Bank, 2 Sandf. Ch. 311; McKee v. Myers, Add. 31; Bland v. Umstead, 23 Pa. St. 31 C; Pringle v. McPher- son, 2 Desau. 524; Harrell v. Witherspoon, 3 McCord, 486. (s) Skelton v. Springett, 11 C. B. 452; see however Oceanic Steam Nav. Co. v. see The Married Women's Property Act, Sutherberiy, 16 Ch. D. 236. 1870 (33 & 34 Vict. c. 93), sect. 14. (y) Elliot v. Merryman, 1 W. & T.; (f.) Scott 1). Tyler, 2 Dick. 712, 725. Lead. Cas. in Eq., 2d ed., p. 45 et (m) Hepworth v. Heslop, 6 Hare, 561. seq. {x) Earl Vane v. Rigden, L. R. 5 Ch. {z) Keane v. Eobarts, 4 Mad. 357. 663; Basset v. Nosworthy, 2 W. & T. {a) Heath v. Chilton, 12 M. & W. Lead. Cas. Eq., 2d ed., p. 1, et seq.; 637; 13 L. J. Ex. 228. 2.03 *130 FORMATION OF CONTRACTS. [BOOK I. their testator, the money recovered by them upon contracts ef- fected in carrying on the business will be assets in their hands, and they may therefore sue for it in their representative capacity, (b) and it makes no difference that the materials supplied under the contract never belonged to the testator, (c) They may also maintain an action in their representative character upon all negotiable securities which have been indorsed or made payable to them as executors or administrators, or generally, or individu- ally, if the amount when recovered will be assets in their hands. If by mistake they pay away the money, or if they sell the goods, of their testator, or carry on his business for the benefit of his personal estate and for the purpose of winding up his affairs, and enter into contracts in so doing, they may sue either in their representative capacity or in their individual character, [*130] not naming themselves * executors. (^) They should, however, upon such contracts, sue in their representative capacity, in order to protect the assets from a set-off in respect of their individual debts, (e) The title of an administrator to the effects and personal estate of the deceased, though it does not exist until the grant of administration, relates back to the time of the death, so as to entitle the administrator to sue upon an implied contract of sale in respect of goods delivered to and received by a party before the grant of the letters of adminis- tration. And if an agent sells goods in ignorance of the death of the principal, the administrator may adopt the contract, and sue upon it in his representative character as soon as he has obtained letters of administration. (/) Interest of Ijzecutors or Administrators. — As the executors unitedly represent the person of the testator, they are all jointly interested in contracts entered into with the deceased, although some of them be infants under the age of seventeen years, (g) unless they have renounced probate, in which case the right of (i) Moseley v. Eendell, L. R. 6 Q. B. 3 Sc. 335; Vanquelin v. Boiiard, 33 L. 388; Abbott v. Parfitt, L. R. 6 Q. B. J. C. P. 78; 15 C. B. N. s. 341. 346, explaining Bolingbroke v. Kerr, (c) Clark v. Hougham, 2 B. & P. 155, L. R. I Ex. 222; 35 L, J. Ex. 137. (/) Foster v. Bates, 12 M. & W. 226; (c) Abbott o. Parfitt, supra. Welchman u. Sturgis, 13 Q. B. 555. {d) Aspinall v. Wake, 3 M. & Sc. Bodger v. Arch, 10 Exch. 340. 423; 10 Bing. 51; Grissell v. Robinson, (g) Foxwist v. Tremaine, 2 Saund. 212. 204 CHAP. I.] THE PARTIES. * 130 representation devolves upon the others, just as if the parties making the renunciation had never been appointed executors, (h) But two of three co-executors may recover lands of their testator in ejectment on a joint demise by the two. (i) In contracts which have been entered into with the personal representatives themselves in the course of their administration, all are jointly interested if the contract has been made on behalf of all ; but where three out of four executors undertook the management of the testator's concerns, and possessed themselves of his property, and directed an auctioneer to sell certain portions of the estate, and sued for the price without joining the fourth, it was held that the action was well brought by the three who bad author- ized the sale and were the actual parties to the contract. (/<;) liiabilitieB of Executors and Administrators on their o-vm Con- tracts. 1 — We have already seen that a promise by an executor 1 Whether contracts made by the executor or administrator hind him personally or charge the estate, see McEldeiy v. McKenzie, 2 Port. 33 ; Taylor v. Perry, 48 Ala. 240; Caldwell v. McVicar, 12 Ark. 746 ; Rush v. McDennott, 50 Cal. 471; Funderburk v. Gorham, 46 Ga. 296 ; McFarlin v. Stinson, 56 Ga. 296 ; Vincent v. Morrison, 1 111. 227; Dunne u. Deery, 40 Iowa, 251; Brown v. Evans, 15 Kan. 88; Hopkins v. Morgan, 7 T. B. Men. 1; Nicholas v. Jones, 3 A. K. Marsh. 385; Livingston v. Gaussen, 21 La. Ann. 2S6; Dickson v. Compton, 24 La. Ann. 83 ; Laudry v. Delas, 25 La. Ann. 181; Florsheim v. Holt, 32 La. Ann. 133; Miller ■». ■Williamson, 5 Md. 219; Ford v. Russell, 1 Freem. Ch. 42 ; Sims v. Stilwell, 4 Miss. 176; Long v. Shackleford, 25 Miss. 559; Hagan v. Barksdale, 44 Miss. 186 ; Farley v. Hord, 45 Miss. 96; Matter of Millenovich, 5 Nev. 189; Meeker v. Van- derveer, 15 N. J. L. 392 ; Ten Eyck v. Vandeqjoel, 8 Johns. 120; Ferrin v. Myrick, 41 N. Y. 315; Kessler v. Hall, 64 N. C. 60; Kerchner i). McRae, 80 K". C. 219; James's Appeal, 89 Pa. St. 54; Nehbe v. Price, 2 Xott & M. 328 ; Jones v. Jenkins, 2 McCord, 494; McMahan i). Harbert, 35 Tex. 451; Boyd «. Oglesby, 23 Gratt. 674; Davenport v. First Congregational See, 33 "Wis. 387. Ordinarily debts contracted by executors and administrators are obligatory as personal obligations only, and cannot, primarily, bind the estates committed to them except in cases specially authorized by statute. Clopton v. Gholson, 53 Miss. 266; see also Lester v. Matthews, 56 Ga. 655. See also Dickinson v. Couniff, 65 Ala. 581; Be Page, 57 Cal. 238; Barker v. Kunkel, 10 111. App. 407. In Austin v. Monro, 47 N. Y. 360, the New York Court of Appeals held that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods and property sold and delivered, or other consideration moving between the promisee and the executor as promisor, are the pei'sonal con- tracts of the executor, and do not bind the estate, notwithstanding the services rendered or goods furnished or other consideration moving from the promisee are Qh) 20 & 21 Vict. c. 77, sect. 79. {h) Brassington v. Ault, 9 Moore, (i) Doe V. Wheeler, 15 M. & W. 623. 343. 205 * 131 FORMATION OF CONTRACTS. [BOOK I. to pay a debt due from his testator will not make him personally liable de bonis propriis, unless there be some new and valid con- sideration for the promise. He is chargeable only thereon in his representative character to the extent of the assets in his hands, although the promise has been put into writing and signed by him, pursuant to the statute of frauds. Q) But if the executor binds himself by deed, without any fresh consideration, or if [ * 131 ] he gives a * written undertaking or promise to pay the debt, founded on a new and valid consideration, such as the payment of money, the supply of goods, or the delivery of documents and evidences of title which the creditor has a right to retain, he will then be personally liable cle bonis propriis upon the contract, (m) If the executor signs his name to a written undertaking to pay a debt due to a creditor of the deceased, in consideration that such creditor will give him time for payment, he will be personally responsiWe de bonis propriis upon this con- tract. (71) And if an executor gives a written undertaking signed by him to a legatee, promising to pay a legacy bequeathed to the latter in consideration that the legatee will forbear for a certain time from taking proceedings to obtain payment of the legacy, he will render himself personally responsible for the payment of the legacy, as being then a debt due from him to the legatee. (0) If an executor signs a promissory note as executor, whereby he promises to pay a sum of money with interest to the promisee, he cannot escape from his liability for the payment of the money to the latter by showing that the amount promised to be paid was a debt due from his testator, or that it was a legacy be- queathed to the promisee, and that he, the executor, has fully such that the executor could properly have paid for the same from the assets and have been allowed for the expenditure in the .settlement of their accounts. The principle is, that an executor may disburse and use the funds of the estate for pur- poses authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. See also Myer v. Cole, 12 Johns. 349; Demott v. Field, 7 Cow. 58; Reynolds v. Reynolds, 3 Wend. 244; Ferris v. Myvick, 41 N. Y. 315. (l) Nelson v. Serle, 4 M. & W. 795 ; (n) Johnson v. Whitechott, 1 Roll. 2 Wins. Saund. 137, n. (a); Hamilton Abr. 24; Hawes ti. Smith, 2 Lev. 122; t). Terry, 21 h. J. C. P. 132. Fish v. Richardson, Yelv. 65; Bradly v. (m) Wheeler v. Collier, Cro. Eliz. Heath, 3 Sim. 543. 406 ; Hamilton v. Incledon, 4 Bro. P. C. (0) Davis v. Reyner, 2 Lev. 3 ; 1 4. Ventr. 120; 2Wms. Saund. 137, n. (d.) 206 CHAP. I.j THE PARTIES. * 132 administered, &c. ; for the giving of such a security by the per- sonal representative to the creditor or legatee imports an agree- ment for forbearance, and binds him individually, and supersedes the necessity of proving assets, {p) If executors have effected a policy of insurance to insure the estate against loss, they will be responsible if they allow the policy to drop withont consulting the parties beneficially interested or resorting to the court, {q) If they give orders for the funeral of their deceased testator, or adopt or sanction the acts of those who have given such orders, they will themselves be personally responsible de bonis propriis to the parties who have fulfilled the orders, (r) If the executor continues the trade of the testator, he wiU of course be personally responsible de bonis propriis upon all contracts entered into by him in carrying on such trade, although he receives no part of the profits and acts strictly as trustee, (s) And by the law of England executors and trustees taking shares in joint- stock companies make themselves personally liable as partners, even though they describe * themselves as [ * 132 ] trustees ; and they are deemed to have intended to bind themselves absolutely ; for if it were held that persons entering into contracts with a trustee were really contracting, not with the individual, but with the trust estate, it would be necessary to examine beforehand the state and amount of the trust estate and the powers of the trustee ; and it could not afterwards be dealt with or disposed of until the consequences of the contract were ascertained, {t) If an executor, after the death of the tes- tator, borrows money, although for the purposes of the estate, he is only liable personally, and the lender cannot prove against the estate, (w) But when there is a promise by an executor, foun- ded upon a previous contract made by the testator, the executor may be sued in his representative character so as to charge the {p) Childs D. Monins, 5 Moore, 2S2; (t) Lumsden v. Buchanan, 4 Macq. 2 B. & B. 460; Barnard v. Pumtret, 5 H. L. Cas. 950 ; Muir v. City of Glas- Myl. & Cr. 71; Ridout v. Bristow, 1 Cr. gowBank, 4 Ap. Cas. 337;Cunninghame & J. 234. V. City of Glasgow Bank, 4 Ap. Cas. 607; (q) Garner v. Moore, 24 L. J. Ch. Cree d. Soraerville, 4 Ap. Cas. 648; Gil- 687; 22 & 23 Vict. c. 35, sect. 30. lespie v. City of Glasgow Bank, 4 Ap. (r) Brice «. Wilson, 3 N. & M. 612 | Cas. 632. 8 Ad. & E. 349, n. (c). («) Farhall v. Farhall, L. E. 7 Ch. (s) Whitman v. Townroe, 1 M. & 123. S. 412 ; ExparU Garland, 10 Ves. 119. 207 * 133 FORMATION OF CONTKACTS. [BOOK I. assets, (x) So he may be sued in his representative capacity for money paid to his use, but only when the matter arises out of a contract with or something done by the testator, {y) Liability of Executors and Administrators for the Acts of each Other.^ — Upon contracts that have been entered into by the per- sonal representatives themselves in the course of their adminis- tration they are jointly liable, if they are jointly parties to the contract, or if one of them has contracted as a recognized or authorized agent on behalf of all ; but one executor has no im- plied authority to bind his co-executors for anything beyond the reasonable and necessary expenses for the funeral of the deceased. An infant executor is not liable upon contracts made by the per- sonal representatives themselves in the course of their adminis- tration. Rights of the Husband upon Contracts made ■ro-ith the Wife during Coverture. — By the common law the husband is entitled to the benefit of all contracts executed by the wife, and of all executory contracts made by her without his knowledge but for his benefit, [z) In some cases the husband is solely entitled to the benefit of the wife's contracts ; in others he may elect to give her an interest by joining her as a co-plaintiff in any action brought to enforce them. At common law, in the case of all simple contracts made with the wife, except bills of exchange and promissory notes, the husband alone took the benefit, unless there was an express promise made to the wife, and unless the consideration upon which the promise was founded moved from her ; (a) for if the wife rendered services without any [*183] express promise of remuneration * having been made to her, the husband alone was entitled to the benefit of 1 See Newton v. Newton, 63 N. H. 537; Shreve v. Joyce, 36 N. J. L. 44; Adair V. Brimmer, 74 N. Y. 539; Bryan v. Stewart, 83 N. Y. 270; Black's Estate, 1 Tuck. 145; Daily's Estate, ib. 95; Whitney v. Phoenix, 4 Eedf. 180; Brown's Accounting, 16 Abb. Pr. N. s. 457; Bailey v. Spofford, 14 Hun, 86; Croft o. "Williams, 23 Hun, 102; Kincade v. Conley, 64 N. C. 387; Eohinson's Estate, 7 PHla. 61; Kilgore v. Moore, 1 S. C. 192; Gates v. Whetstone, 8 S. C. 244; Ander- son v. Earle, 9 S. C. 460. {x) Dowse V. Cox, 3 Bing. 20 ; Far- («) Millard v. Harvey, 84 Beav. hall V. Farhall, supra ; Powell v. Gra- 237. ham, 7 Taunt. 581. (a) Buckley v. Collier, 1 Salk. 114. (y) Farhall v. Farhall, L. E. 7 Ch. 123, 128. 208 CHAP. I.] THE PARTIES. * 133 the contract, because he was entitled to the fruits of her labor; (6) and where the personal skill of the wife did not alone form the consideration for the promise, but materials were provided which were the property of the husband, he alone could enforce the contract, (c) Thus where a husband and wife sued jointly to recover money lent by the wife, and the declaration stated a promise to them to repay the money, and alleged a breach by non-payment ad damnum eorum, it was held that they could not maintain a joint action, as a feme covert could not be pos- sessed of money jointly with her husband, (d) So where an action was brought by husband and wife for the use and occupa- tion of a messuage and lands, for money had and received to the use of the husband and wife, and for money due on accounts stated between them, and the plaintiff stating the promises and laying the damages to them jointly, it was held, in arrest of judgment, that the entire damage resulted to the husband, and that the action ought to have been brought in his name alone, (e) In the case of bills and notes made payable to the wife during the coverture, the husband may take the sole benefit, (/) or he may at his option give his wife an interest therein by joining her with him as a co-plaintiff, (g) And the law is the same in the case of bonds and other personal contracts under seal entered into during the coverture with the wife separately, or with the husband and wife jointly, (h) The wife, indeed, may sue alone and recover upon a contract under seal made with her during coverture, if the coverture is not pleaded, (i) And where a married woman brought an action of debt on simple contract in her own name against a railway company for dividends due on shares standing in her name, it was held that she was entitled to (J) Brashford v. Buckingham, Cro. {/) Burrough v. Moss, 10 B. & C. Jao. 77, 205; Fountain v. Smith, 2 Sid. 558. 128; Roll. Abr. 32, pi. 12. (^r) Phillis Kirk v. Pluckwell, 2 M. & (c) Holmes v. Wood, 1 Barn. 75, S. 393. 249. (h) Howell v. Maine, cited 2 M. & S. (d) Abbot V. Blofield, Cro. Jac. 644; 896 ; Ankerstein v. Clarke, 4T. R. 616 ; King V. Bassingham, 8 Mod. 199. Arnold v. Revoult, 4 Moore, 71 ; 1 B. & (e) Bidgood v. Way, 2 W. Bl. 1236 ; B. 443 ; Hellyer v. Grace, Styles, 9. Johnson v. Lucas, 1 Ell. & Bl. 659 ; 22 (i) Bendix v. Wakeman, 12 M. & W. L. J. Q. B. 174; Bond v. Maze, 16 L. J. 97 ; Guyard v. Sutton, 3 C. B. 153. Q. B. 196. VOL. I. 14 209 * 133 FORMATION OF CONTRACTS. [BOOK I. recover, the non-joinder of the husband not having been pleaded in abatement, (k) Rights of the Surviving "Wife.' — If the wife survives the husband, she is entitled to the benefit of all contracts under seal ' As every one knows, the topics in this section and the seTenteen which follow it in the text have been the subject during the present generation of exceed- ingly varied and complex legislative changes in many of the States. It is only in a secondary sense, however, that most of the new laws on the subject of married women's dealings can be said to belong to the law of contracts. With few and slight exceptions, — and those are of local character only, — they affect the personal disability or capacity of a wife to hold and convey property and charge it for con- tracts made for its benefit, to engage in business and make pecuniary engagements in connection therewith, to promise her services and give receipt for compensation, and other matters of kindred nature; thus they belong primarily to the field of Persons and Personal Relations. In short, the recent legislation on the subject is addressed to the civil and social status of married women considered as a distinct class of persons; it does not materially affect the form, requisites, interpretation, validity, or enforcement of the various kinds of contracts known to the law, except that it, more or less fully in various States, brings wives into the class of persons competent to make them. These considerations render it proper, and the number and variety of the decisions make it necessary, to dispose of the subject by simply referring the reader to the leading general discussions. The decisions themselves have been presented from year to year in a manner to exhibit the general nature of the statutes in U. S. Dig. tit. Husband and Wife ; see also Ewell, Lead. Cas. 245-521. The chief text-books which have from time to time epitomized the progress of the law, — to mention them in chronological order, so as to show how far down they respectively extend, — are: Cord, Legal and Equi- table Rights of Married Women (1861); Reeve, Baron and Feme, and other Domestic Relations (3d ed. 1862); Bishop, Law of Married Women (1871); Schouler, Dom. Rel. Part II., pp. 22-303 (2d ed. 1874); Hush. & Wife (1882); Tyler on Infancy and Coverture, Part II., pp. 313-902 (2d ed. 1882). This list does not mention several esteemed works devoted more especially to marriage and divorce. Recent magazine articles on various branches of the subject worthy of notice are: Contracts of Married Women, 20 Alb. L. J. 244; ib. 264; Contracts of Wife separated from Husband, for Necessaries, 23 Alb. L. J. 284 ; Circumstances in which a Married Woman may act as a Feme sole, 16 West. Jur. 161; note by A. C. Free- man, on reducing to possession a. wife's choses in action, payment to husband, assignment and release by him, suit or arbitration, &c., 37 Am. Dec. 577; note by the same on when wife is regarded as feme sole, sole trader, &c., ib. 709; note by E. H. Bennett to Debenham v. Mellon, on grounds of wife's authority to bind her husband for necessaries, 20 Am. L. Reg. 316, 324; note by H. W. Rogers to Davis u. Smith, 21 Am. L. Reg. 161, 165; note to Nash v. Mitchell, on contracts, &c. of maiTied women, 3 Abb. N. Cas. 171. 180; articles, 6 S. L. Rev. 633; 7 ib. 68. Somewhat more recent than either of the foregoing is a treatise wholly devoted to Contracts of Married Women, by John F. Kelly, Part I. of which treats, in successive chapters, of Antenuptial Contracts; Marriage and its Effects; the Wife's Choses in Action ; the Wife's Equity; Real Property of Married Women ; a Married Woman's Contracts during Coverture; a Married Woman's Jus dispmiendi; her (k) Daltor v. Mid. Ry. Co., 13 C. B,474 ; 22 L. J. C. P. 177. 210 CIIAP. I.] THE PAETIES. * 134 entered into during the coverture with herself alone, or with her husband and herself jointly, {l) but she may waive her right to *the instrument ; and it then becomes the obli- [*134] gatiou of the husband alone. To a debt due on a joint judgment recovered by herself and husband during the coverture, the wife is also entitled by survivorship, (m) The surviving wife is entitled also to all promissory notes and bills of exchange made payable to her during the coverture, and to all express simple contracts where the promise has been made to herself during the marriage, and the consideration to support it has moved from her. (ii) Where a feme covert administratrix received a sum of money in that character, and lent the same to her hus- band, taking in return for it the joint and several promissory notes of her husband and two other persons payable to her with interest, and the husband died, it was held that the note was a cJiose in action surviving to the wife, (o) As regards a simple . contract, however, made with the wife alone, or with the husband and wife jointly during coverture, the husband may elect to let his wife have the benefit of it by survivorship, or he may take it himself. If in his lifetime he brings an action upon the con- tract in his own name, that amounts to an election to appropri- ate it to himself, and the wife cannot consequently in this case take it by survivorship, (p) If he joins his wife as a party suing on the contract, and dies, she may, by entering a suggestion of his death upon the record, prosecute the suit to judgment for her own sole use ; and, even if judgment has been signed in the action so commenced prior to the husband's death, but no exe- cution has been levied, the benefit of the judgment will survive to the wife, and she may forthwith issue execution thereon for her own use. (q) Dominion over her Separate Estate and its Liability for her Contracts, &e. ; while Part II., in thirty-eight chapters, devoted one to each of the several States, epito- mizes the legislation and decisions of the States separately. (Q 1 Roll. Abr. 349 (B.); Coppin v. [o) Eichards v. Richards, 2 B. &Ad. — -, 2 P. W. 496. 447. (m) Com. Dig. Bar. et Feme, F. 1 ; (p) Scarpellini v. Atcheson, 7 Q. B. Oglander v. Baston, 1 Vern. 396. 834. («) Nash V. Nash, 2 Mad. 133; Gaters (q) Sherrington ». Yates, 12 M. & "W. V. Madeley, 6 M. & "W. 423; Fleet v. 865; Bond v. Simmons, 3 Atk. 21; Perrins, L. R. 4 Q. B. 500. Nanney v. Martin, 1 Ch. C. 27. 211 * 135 FORMATION OF CONTRACTS. [BOOK I. The common law rights of the husband to the benefit of con- tracts made by the wife during coverture have, however, been modified by the 33 & 34 Vict. c. 93, which enables a married woman to maintain an action in her own name for tlie recovery of any wages or earnings acquired or gained by her after the passing of the act, in any employment, occupation, or trade in which she is engaged or which she carries on separately from her husband, (r) or for any money or property acquired by her through the exercise of any literary, artistic, or scientific skill ; and such wages, earnings, money, and property, and all invest- ments thereof, are to be deemed and taken to be property settled to her separate use, independent of any husband to whom [*135] she maybe married; and *her receipts alone will be a good discharge for such wages, earnings, money, and property, (s) Under this enactment a married woman can maintain an action against her bankers for dishonoring her cheque, or for not pre- . senting for payment a bill of exchange deposited with them for that purpose, or for not giving her notice of the dishonor of a bill of exchange entrusted by her to them, (t) The statute gives a right to bring an action, and says that the married woman shall have the same remedies as a feme sole; it may be doubted whether, like a feme sole, she would be barred by the statute of limitations, or would come within the excep- tions as a feme covert, (ti) Inability of Married 'Women to bind themselves or their Hus- bands by Deed. — The husband cannot be sued upon any con- tract under seal entered into and executed by the wife in his name or on his behalf, unless he has given her a power of attor- ney under seal to contract for him by deed, or unless the deed is sealed and delivered by her in his name, in his presence, and by his commandment. Neither is the wife herself liable upon the deed by reason of her coverture, (x) But if work has been performed, or services rendered, or goods supplied for the use of (r) See Lovell v. Newton, 4 C. P. D. («) See post, p. * 1252. 7; Ashworth t). Outrain, 5 Ch. D. 923. (x) Lambert v. Atkins, 2 Campb. (s) 33 & 34 Vict. c. 93, sects. 1 & 11. 273 ; Cod. lib. 4, tit. 12, lex 1. As to {t) Sumners v. City Bank, L. R. renewals of leases by a feme covert, see 8 C. P. 580. 11 Geo. IV. & 1 W. IV. c. 65, sect. 16. 212 CHAP. I.] THE PARTIES. * 136 the husband upon the faith of a covenant by the wife for pay- ment or remuneration, the husband is liable for the fair value of the work and services, and of the goods supplied, just as if the covenant had never been in existence, (y) Authority of the Wife to sign \WritingB for the Husband. — The liability of the husband upon simple contracts made or signed by the wife during the coverture depends upon the nature of such contracts and of the things stipulated and agreed to be done. No power of attorney is requisite to enable the wife to bind the husband by simple contract ; but the latter will be held liable, provided he appears expressly or impliedly to have sanctioned what she has done. (2) The wife is not the agent of the husband iu respect of the management of his estate and business, (a) unless he has intrusted her with the general man- agement of it, in which case he makes her his general agent for the carrying it on, and clothes her with an implied authority to enter into all such contracts and agreements as are usual and necessary for the purpose ; and he is consequently re- sponsible for the fulfilment of all contracts * that may [ * 136 ] be entered into by her in the execution of her task, just as if they had been made by any ordinary general agent employed by him in the matter. (6) Bills of exchange and promissory notes, for example, drawn, accepted, or indorsed by a wife who is intrusted by the husband with the conduct and management of a business in the carrying on of which it is usual to negotiate such securities, are binding upon the husband ; but if she is not carrying on the husband's business, it must be shown that she acted by his express authority, (c) The wife may be clothed with an express or implied authority to bind the husband by signing her own name as well as the husband's name; and the husband may accept bills and contract in his wife's name as well as in his own name, (d) A wife who has the conduct of her husband's business, and who is iu the habit of drawing, accept- {y) White «. Cuyler, 1 Esp. 200; (a) Meredith v. Footuer, 11 M. & 6 T. E. 176. By the 37 & 38 Vict. c. 78, W. 202. sect. 6,a married woman who is a bars (b) Petty v. Anderson, 10 Moo. 577. trustee may convey or surrender free- (c) Prest^vick v. Marshall, 5 M. & P. hold or copyhold as if she were Si feme 513; Cotes v. Davis, 1 Campb. 485; sole. Code Nap. L. 1, tit. 6, c. 6, 220. (z) M'George e. Egau, 7 Sc. 112. (rf) Lindus v. Bradwell, 5 C. B. 583. 213 * 137 FORMATION OF CONTRACTS. [BOOK t ing, and indorsing bills and notes in his name, may draw and indorse by the hand of her daughter (the daughter being in her presence and acting under her immediate direction) without vio- lating the rule delegatus non potest delegare, (e) The husband is not liable for any fraud of the wife which is directly connected with and dependent upon a contract. (/) Loans of Money to the 'Wife. — A married woman has in general no implied authority to borrow money and charge the husband with the repayment of it. (g) But such small amounts as a wife may require upon an emergency for her household expenses, medicines, or necessaries, a third party would be just- ified in lending her ; {h) and a person who has advanced money to the wife for necessaries may be entitled to stand in the place of the person who actually supplied the necessaries, (i) Sale of Goods to Married Women. — Every married woman residing with her husband, and having the general management of his house and household affairs, is presumed to be his general agent in all matters connected with the domestic economy of the house and family. She is, therefore, clothed with an implied autliority from the husband to give orders for wearing apparel, furniture, provisions, and all s\ich things as may fairly be pre- sumed necessary for the decent maintenance of herself, her hus- band and family, and the general comfort and enjoyment of the household, according to the apparent circumstances and situation in life of her husband and the position in society which [ * 137 ] he allows her to * assume, (k) But a wife has implied authority to pledge her husband's credit for such things only as fall within the domestic department ordinarily confided to the wife's management, and are necessary and suitable to the style in which her husband chooses to live. (/) And this pre- sumption of the wife's authority may be rebutted by proof that (e) Lord ». Hall, 8 C. B. 631. (J) Etheiington v. Parrot, 1 Salk. (/) Wright V. Leouarfl, 11 C. B. 118; Waithman i;. Wakefield, 1 Camvb. N. s. 258; 30 L. J. C. P. 36,5. 120 ; Clifford v. Lnton, 3 C. & P. 16 ; (g) Knox v. Bushell, 3 C. B. N. s. Byles, J., Jolly v. Eees, 15 C. B. N. s. 335. 643; 33 L. J. C. P. 177. (A) Harris ;•. Lee, 1 P. Wms. 482. (l) Pliillipson v. Hayter, L. K. 6 C. (i) Jenner v. Morris, 29 L. J. Ch. P. 38; 40 L. J. C. P. 14; Debenhani ■». 923 ; Davidson o. Wood, 1 De G. J. & Mellon, 5 Q. B. D. 394, C. A. ; 6 Ap. S. 455; 32 L. J. Ch. 400. Cas. 24. 214 CHAP. I.J THE PARTIES. * 137 the husband had furnished her with ready money to pay for what was necessary, and had forbidden her to pledge his credit, (m) or that the wife had, during the husband's absence and without his knowledge, placed herself under the protection of a man with whom she was living in adulterous intercourse, (n) The implied authority however, to bind the husband, resulting from cohabit- ation, " may be discharged by the prohibition and countermand of the husband." (o) The wife has no implied authority to run into extravagance, and to give orders which are beyond the hus- band's means. If, therefore, wines and spirits, or extravagantly expensive dresses, expensive music, jewels, and articles of luxury and ornament are ordered by the wife, there must be reasonable evidence to show that the wife has made the contract with the knowledge and assent of the husband, (p) If a tradesman finds a wife giving extravagant orders unsuited to the husband's estate and apparent condition of life, he ought, if he intends to look to the husband for payment, to ascertain whether the latter is aware of the wife's extravagance, and whether he does or does not sanction it. (q) Where a married lady went to a watering- place without her husband, and ordered expensive articles of dress unsuited to her husband's circumstances, and the latter disapproved of her extravagance as soon as he was aware of it, it was held that he was not responsible for the price of the things supplied to her. (r) If a married woman obtains silks on credit and pawns them, the husband is not bound to pay for them, as they never came to his use ; but it is otherwise if they are made up and sent home and worn by the wife in his pres- ence, (s) Proof of the Assent of the Husband to the Wife's Contracts. — But the law, whilst discouraging the covert pandering of trades- (m) Jolly V. Rees, and Debeuham v. v. Teakle, 13 C. B. 627 ; 22 L. J. C. P. Mellon, supra. 161. («) Atkyns v. Pearce, 2 C. B. N. s. (q) Montague v. Benedict, 3 B. & C. 763; 26 L. J. C. P. 252. 631 ; Lane v. Ironmonger, 13 M. & W. (o) Manby v. Scott, Bridg. Jndg. by 369; Seaton v. Benedict, 2 M. & P. 66; Bennett, 229 ; 1 Bac. Abr. 717 ; 2 5 Bing. 28. Smith's L. C. 375, 5th edit. ; Jolly u. (r) Atkins u. Curwood, 7 C. & P. Rees, and Debenham v. Mellon, supra. 756. (p) Metcalfe v. Shaw, 3 Campb. 22; (s) Etherington v. Parrot, 1 Salk. Spreadbury v. Chapman, 8 C. & P. 371; 118. Reneaux v. Teakle, 8 Exch. 680 ; Reid 215 * 138 FORMATION OF CONTRACTS. [BOOK I. men to the extravagance of married women, expects from [*138] the * husband some exercise of his marital control for the purpose of checking such extravagance when he has the power of interference and prevention. When, therefore, a husband living \inder the same roof with his wife sees her attired in costly dresses and indulging in expensive ornaments, and fails to manifest his disapprobation by any active interference or opposition, making no inquiry as to where the articles come from, and giving no intimation to the tradesmen who supply them of his intention not to pay for them, he will be presumed to assent to the wife's acts and proceedings, in accordance with the maxim qui non prohilere potest assentire videtur. (t) " If the husband," observes Lord Ellenborough, "has any control over goods improvidently ordered by the wife, so as to have it in his power to return them to the vendor, and he does not return them or cause them to be returned, he adopts his wife's act, and ren- ders himself answerable. Nor is it any excuse in law that the wife is unmanageable and disobedient, as he must be supposed to exercise his marital rights and to regulate her conduct." Where, therefore, the goods have not been eloigned, but are in the house with the knowledge and sanction of the husband, it is his duty to compel their re-delivery to the tradesman, or to tender them back to him. (u) The mere circumstance, however, of the husband seeing the wife wearing some of the things or- dered by her, and not objecting to them, will be no proof of his assent to the whole of an extravagant order. The fact that the wife has ordered goods of a similar description from the trades- man with the assent of the husband would be evidence that she had the husband's authority to deal with him. (cc) Of the Giving of Credit to Married 'Women so as to exempt the Husband from Liability. — Evidence that the wife has a sepa- rate income over which the husband has no control, that she keeps a separate banking account of her own, and that the plain- tiff has taken the wife's promissory notes, or has drawn bills of (I) Parke, B., Morgan v. Thomas, 8 (x) Po- Thesiger, L. J., in Debentam Exoh. 307; 2 Instit. 305, a.; Morton v. v. Mellon, 5 Q. B. D. 403 ; see also 6 Withers, Skin. 348. App. Cas. 24. (jt) Waithman v. Wakefield, 1 Campb. 121. 216 CHAP. 1.] THE PARTIES. *139 exchange on her which she has accepted in her own name, in payment of goods supplied to her, and which notes or bills have been paid when at maturity through her bankers, show that the plaintiff dealt exclusively with the wife, and gave credit to her relying upon the funds known or presumed to be at her disposal, so as to exempt the husband from responsibility, (y) In these cases the remedy of the creditor is against the sepa- rate property of the wife in the * hands of her trus- [ * 139 ] tees. («) If the tradesman, at the time he deals with and trusts the wife, does not know her to be a married woman, he cannot be said to have given credit to the husband ; and if articles sold to the wife under such circumstances are not neces- sary for the use of the wife, and have not been used by the wife with the knowledge of the husband, and have not been consumed in the husband's household, or come in any shape or way to his use, and he has not subsequently sanctioned or adopted the wife's contract, he cannot be made responsible for the payment of the price of them, (a) Remedies of Creditors against the Separate Property of Mar- ried Women. — A married woman is incapable of binding herself by a contract ; and the fact that a married woman is living apart from her husband and trading on her own account does not enable her to contract so as to give a right of action against her- self (&) A married woman is not personally liable upon any contract made by her during coverture, whether she be living with or separated from her husband, and whether the latter be an alien resident here, or, being a subject, has abjured the realm and gone beyond sea, and she has represented herself to be, and has contracted as, a widow or a feme sole, (c) But if the wife of an alien who has never been in England has contracted as a feme sole she is personally liable, (d) A married woman is not liable to the bankrupt law, even though she has separate estate, and (y) Beiitly v. Griffin, 5 Tannt. 356; (6) Clayton v. Adams, 7 T. E,. 605 ; Freestone v. Butcher, 9 C. & P. 643; Marshall d. Rutton, 8 T. R. 545. Taylor v. Brittan, 1 C. & P. 16, n. ; (c) Stretton v. Busnach, 1 Bing. N. Metcalfe v. Shaw, 3 Campb. 22. C. 139; Harden v. Kererberg, 2 M. & W. (z) Infra; Latouche v. Latouche, 34 61; March v. Hutchinson, 2 B. & P. 226; L. J. Ex. 85. Williamson v. Dawes, 9 Bing. 292. (a) Clifford v. Laton, 1 M. & M. ((i) DeGailloni). L'Aigle, 1 Bos. & P. 102. 357. 217 * 140 FOKMATIOK OF CONTRACTS. [BOOK I. has contracted debts after marriage. («) In order that a creditor may obtain payment out of her separate estate, he must join as defendants her husband (/) and the trustees of her settlement, {g) But if a married woman has the power of dealing with separate property of her own, she has the power of contracting debts to be paid out of it, and her separate property is bound by her debts, obligations, and engagements contracted with reference to and upon the faith or credit of that property ; Qi) and effect will be given to them, not as personal liabilities, but by laying hold of the separate property as the only means by which they can be satisfied. {€) It seems to have been thought that a [ * 140 ] married woman * might charge her separate property in expectancy, and e\'en that she might charge whatever property might subsequently become her separate property ; {k) but it has now been decided that she cannot charge property in respect of which she is restrained from anticipation, (I) and that she can only charge such separate property as she is pos- sessed of at the tinre of contracting the debt. (;m) The manner of coming at the separate property of the wife has been by de- cree, to bind the trustees as to personal estate in their hands, [n) not by judgment against the wife personally, {nn) The court has decreed payment out of a wife's separate estate of notes and bills made and accepted by the husband and wife jointly, or by the wife alone during the coverture ; (o) also of the bills of her trades- men and solicitors, (^p) and of debts due for rent of houses taken by her on lease, {q) A married woman may also be placed upon (c) Ex parte 1 ones, 12 Ch. D. 484. 665, following Pike v. Fitzgibbon, 14 (/) Hancock II. Lablache, 3 C. P. D. Ch. D. 837; see infra. 197. {!) Pike v. Fitzgibbon, 17 Ch. D.454, ((/) Atwood V. Chichester, 3 Q. B. D. C. A.; Durrant v. Rickets, iii/ra. The 722. court may charge her estate with her (7i) Johnson v. Gallagher, 3 DeG. F. consent; see 44 & 45 Vict. c. 41, ». 39; & J. 494; 30 L. J. Ch. 298; Picard v. Hodges v. Hodges, 20 Ch. D. 749. Hine, L. R. 5 Ch. 276; Lond. Chart. Bk. (m) lb. of Aust. r. Lempriere, L. R. 4 P. C. 572; («.) Hulme v. Tenant, 1 Br. Ch. C. Mayd v. Field, 3Ch. D. 587; Godfrey v. 19; Heatley v. Thomas, 15 Ves. 596. Harben, 13 Ch. D. 216; as to this case, (n,i) Durrant v. Rickets, 8 Q. B. D. see Pike v. Fitzgibbon, infra; prr Cotton, 177. L. J., Daviesv. Jenkins, 6 Ch. D. 728. (o) BuHiiin v. Clarke, 17 Ves. 365; (i) Owens v. Dickenson, 1 Cr. & Ph. Stuart v. Kirkwall, 3 Mad. 387. 54; Johnson v. Gallagher, 3 DeG. F. & {p) Murray d. Barlee, 4 Sim. 82. J. 494; 30 L. J. Ch. 306. (q) Gaston v. Frankum, 13 Jur. 39. (i) See Flower v. BuUer, 15 Ch. D. 218 CHAP. I.] THE PARTIES. * 141 the list of contributories to a company in respect of her separate estate ; for if a married woman, having separate property, enters into a pecuniary engagement, whether by ordering goods or otherwise, which (if she were a feme sole) would constitute her a debtor, and in entering into such engagement she purports to contract, not for her liusband but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obligation for which the person with wliom she contracts has the right to make her separate estate liable, and the question whether the obligation was contracted in the man- ner mentioned must depend upon the facts and circumstances of each particular case, (r) But the contract must be entered into on the credit of the separate estate ; for the separate estate of a married woman is not liable to pay her general debts even where it is hers absolutely, (s) A charge on the separate estate is, how- ever, implied where any debt of hers is secured by writing ; for otherwise the writing would be a mere piece of waste paper, (s) If the engagement is not in writing, it must be proved that it was entered into with an intention on the part of the married woman of making her separate estate liable to discharge that debt ; and this intention will not be inferred from the mere circumstance of her contracting the debt. If, however, the separate property * consists of real estate only, the statute of [ * 141 j frauds will apply, and a writing will be necessary, (ss) If it appears that a bond or promissory note, or any security for money, or any acknowledgment of a debt, has been obtained from a married woman by any undue influence on the part of the husband, the court would then decline to interfere to charge her separate estate; but the exercise of such undue influence must be clearly established to repel the prima facie liability, (t) The rule that a feme covert is to be considered a feme sole as to her separate property, does not extend to transactions between her- self and her husband, (u) Proof of Marriage. — If parties have lived together as man and (r) Matthewman's case, L. K. 3 Eq. (s) Shattort v. Shattort, L. E. 2 Eq. 781; 36 L. J. Cli. 80; Bulter v. Cump- 182. ston, L. K. 7 Eq. 16; 38 L. J. Ch. 35; (ss) See post, p. *159. M'Henry v. Davies, L. E. 10 Eq. 88; {t) Field v. Sowle, i Euss. 112. 39 L. J. Ch. 866. (a) Milues v. Busk, 2 Yes. Jun. 498. 219 * 142 FORMATION OF CONTRACTS. [BOOK I. wife, and are commonly reputed to be married, this suffices to enable third parties to charge them with the duties and responsi- bilities that result from such a relationship; (x) and if it be proved that they have actually gone through the marriage cere- mony, but that they afterwards separated, there is sufficient evi- dence of their standing towards each other in the relationship of man and wife, unless a divorce can be proved. No contract entered into by a married woman with a person who knows her to be married, otherwise than by deed acknowledged, or by some act in court in which she is put at arm's length from her hus- band, can bind her real estate, even although she has for a long time led the other party to believe that she will abide by such contract, and he has, on the faith of such belief, irrevocably abandoned valuable rights, (y) A feme sole trader may, by the custom of London, be sued in the courts of the city of London upon contracts made by her in the course of her trade, (z) Release of the Husband from Liability upon the Wife's Con- tracts after Adultery. — Those who furnish the wife with the means of subsistence after a separation by reason of the wife's adultery have no claim against the husband in respect thereof, whether they had notice of the adultery or not at the time they furnished their goods ; for the implied authority of a wife who is not living with her husband to bind her husband by her contracts for necessaries is put an end to by her adultery, (a) The previous adultery and misconduct of the husband form no excuse in point of law for the adultery of the wife. (6) [ * 142 ] But if a condonation takes place, (c) and * the husband receives the wife back again, all her original rights are restored ; and the husband cannot then refuse to support and maintain her, unless he can prove the commission of a fresh and subsequent act of adultery, (rf) And if the husband con- (x) Mace v. Gammel, Lofft. 782 ; Ed- (a) Cooper v. Lloyd, 6 C. B. N. s. wards v. Farebrother, 2 M. & P. 293 ; 524. 3 C. & P. 524. (6) Govier v. Hancock, 6 T. E. 603 ; (y) Niclioll V. Jones, 36 L. J. Ch. and see Needham v. Bremner, L. R. 1 554 ; L. R. 3 Eq. 696 ; Lane I'. McKeen, C. P. 583 ; 35 L. J. C. P. 313. 15 Maine, 304. (c) Keats. ». Keats, 28 L. J. P. & M. (z) Candell v. Shaw, 4 T. R. 361 ; 78. Beard v. Webb, 2 B. & P. 92 ; Lewin (d) Hanis v. Morris, 4 Esp. 41. on TiTjsts, 493-499. 220 CHAP. I.] THE PAETIKS. * 142 nives at the adultery of the wife, and continues to reside with her, or permits her to remain under his roof in charge of his children, he cannot refuse to maintain her. (e) If, however, during the husband's absence abroad, the wife places herself and her husband's children under the protection of a man with whom she resides and carries on an adulterous intercourse, without the knowledge of the husband, the husband is not re- sponsible for things furnished to the children by the wife's order if he has supplied her with money adequate for the maintenance of the children. (/) Desertion of the Husband by the 'Wife. — If the wife leaves the husband without just cause, she cannot procure subsistence elsewhere at his expense. If she has returned to a sense of duty after a short absence, the husband would be bound to receive her back ; and if he refused to do so, his liability for necessaries supplied to her would be revived from the time of such refusal. But if she has deserted her husband for a lengthened period, he is not bound to receive her back or maintain her ; " for if it were so, wives might leave their husbands' bed in the pride of their youth, and return in their useless old age.'' (g) If trades- men, therefore, part with their goods to a wife living separate from her husband, and then seek to charge the husband with the payment of them, the burden of proving that the separation took place under such circumstances as will entitle them to recover the price from the latter, falls upon their shoulders, (h) " The mischief," observes Abbot, C. J., " of allowing the ordering of goods by a married woman living apart from her husband to he prima facie evidence so as to charge him for them, would be incalculable." (i) Desertion of the Wife by the Husband. — If the husband sepa- rates from liis wife, and leaves her destitute, without being able to prove that she has forfeited her marriage rights by adultery, the law gives her a right to support herself upon the credit and at the expense of her husband ; and any tradesman who at her request supplies her with necessaries suitable to her station in (e) Norton v. Fazan, 1 B. & P. 227 ; (A) Clifford v. I.aton, 3 C. & P. 16 ; Eobison v. Gosnold, 6 Mod. 172. Edwards v. Towels, 6 So. N. E. 641. (/) Atkyiis V. Pearoe, ante, p. * 137. (i) Mainwaring v. Leslie, 1 M. & M. Ig) Manby v. Scott, 1 Lev. 5. 18. 221 * 143 FORMATION OF CONTRACTS. [BOOK L life, in contemplation of law, supplies them to the husband him- self, and may recover the amount as a debt due to him from the latter, (k) And the wife may also pledge the husband's [*143] credit for necessaries for the * maintenance of their children of tender years, living with her against his will by the order of the court. (I) A person who advances to a deserted wife money to enable her to supply herself with neces- saries has an equitable claim against the husband for so much of the money as is actually applied by the wife in paying for necessaries ; (m) but if the wife lias separate income of her own, adequate to her support, the husband is not then bound to maintain her; (71) and if the husband o&'ers to support her, he does not " refuse to maintain her " under stat. 5 Geo. IV. c. 83, sect. 3 ; (0) but her authority to support herself at his expense is not at an end. (00) The law does not, of course, sanction a wife in running into extravagance. " It makes her the husband's agent to order sucli things as are reasonable and necessary for herself; but it gives her no liberty to pledge his credit for any- thing beyond what is reasonably necessary." (p) Where a wife, being violently turned out of doors and threat- ened by her husband, employed an attorney to exhibit articles of the peace against him, it was held that the husband was respon- sible for the payment of the attorney's charges ; (q) for when- ever the husband by his conduct compels the wife to appeal to the law for protection, she may charge him for the necessary ex- pense of the proceedings as much as for the necessary food or raiment, (r) and her solicitor may sue for his necessary costs, (s) But an indictment against the husband is not necessary for the protection of the wife ; and, therefore, where a husband, having ill-treated his wife, was indicted on her prosecution, and fined (k) Harris D. Morri.s, i Esp. 41; Bol- (0) Flannaganu. Bishop 'VVearniouth, ton V. Prentice, 2 Str. 1214. 8 Ell. & Bl. 455. (0 Bazeley v. Forder, L. R. 3 Q. B. (00) Emery v. Emery, post, p. * 144. 559; 37 L. J. Q. B. 237. {p) Emmett v. Norton, 8 C. & P.. (m) Jenneru. Morris, 3 DeG. F. & J. 510. 45; 30 L. J. Ch. 361; Dearec. Soutten, (?) Turner u. Rooks, 10 Ad. &E. 47; L. E. 9 Eq. 151; and see Johnston v. Shepherd v. Mackoul, 3 Campb. 327. Manning, 12 Ir. C. L. Kep. 148. (r) Brown v. Ackroyd, 5 £U. & Bl. (n) Liddlow «. Wilmot, 2 Stark. 86; 826. Johnston v. Sumner, 3 H. & N, 266; (s) Ottaway ». Hamilton, 3 C. P. D. 27 L. J. Ex. 341. 393, C. A. 222 CHAP. I.] THE PAKTIES. * 144 and imprisoned, and a brother of the wife advanced money to pay the expenses of the prosecution, it was held that he was not entitled to recover the amount from the husband, (t) The husband is not liable for expenses incurred by the wife without his sanction in procuring a deed of separation, (it) nor for the costs of a suit instituted on her behalf for a judicial separation, where proper care has not been taken to ascertain that the suit was rightly instituted, (x) But a husband has been held liable for preliminary expenses incidental to a suit for restitution of conjugal rights, and for the expenses of obtaining counsel's opinion on the effect of an antenuptial * agree- [ * 144 ] ment for a settlement, and of obtaining professional advice as to the proper mode of dealing with tradespeople who were pressing her for payment for necessaries supplied by them to her since the desertion, and of preventing a threatened distress for rent, (y) and for the costs necessarily incurred by the wife in filing a petition for a judicial separation, although the petition was not proceeded with, and although the course prescribed by the practice of the Divorce Court for obtaining the wife's costs was not pursued, (z) What amounts to an Ezipulsion of the Wife by the Husband. — If by cruelty the husband renders it morally impossible for the wife to continue to reside with him, and she accordingly leaves him, this is as much an expulsion as if he had turned her out by main force, (a) If the husband brings home a loose woman, and treats her as a member of his family, this is a sufficient cause for the wife's leaving him ; and so is the existence and continuance of an adulterous intercourse on the part of the hus- band with another woman. (6) Whenever the wife has once left her husband under justifiable circumstances, she is not bound to return upon the invitation of the latter; and the husband's (0 Grindell v. Godmnnd, 5 Ad. & E. (y) Wilson v. Ford, L. R. 3 Ex. 63; 755. 37 L. J. Ex. 60. (m) Ladd t'. Lynn, 2 M. & W. 265 ; (z) Rice v. Shepherd, 12 C. B. N. s. and see Pearson a. Darrington, 32 Ala. 322. 227 ; Williams «. Monroe, 18 B.More, (a) Baker v. Sampson, 14 C. B. N. s. 514; Johnson v. Williams, 3 Iowa, 197. 383; Blowers d. Sturtevant, 4Denio, 46. (x) Hooper, in re, 33 L. J. Ch. 305; (6) Houliston v. Smyth, 3 Bing. 2 De G. J. & S. 91; and see Shelton v. 127. Pendleton, 18 Conn. 417. 223 * 145 FORMATION OF CONTRACTS. [BOOK I. liability for necessaries furnished to her cannot be determined by a request on his part that she will again return to his pro- tection, (c) Liability of the Husband for Necessaries supplied to the Wife during a Separation by Mutual Consent. — The husband is re- sponsible for necessaries furnished to the wife during the con- tinuance of a separation by mutual consent, unless she has competent provision from him or from funds at her own dis- posal ; if she has such a provision, it lies on the husband to show it, (d) and on the creditor to prove that it is insufficient, (e) If the wife leaves her home in consequence of a quarrel with the husband in which they are mutually to blame, and obtains lodging and the necessaries of life at the hands of a third party, the husband ^vill be responsible for the board and lodging and necessaries provided for her. (/) Where a wife voluntarily left her husband's house, and went to reside with her brother about a mile distant, with whom she continued to live apart from her hus- band until her death many years after, when her brother, without any communication with the husband, buried her in a suitable manner, it was held that the brother was entitled to recover from the husband the expenses of the funeral, (g) But [ * 145 ] * in all cases of voluntary separation, unaccompanied by cruelty, the husband may put an end to his liability for necessaries by requiring the wife to return to him, and prohibit- ing parties from continuing to give her credit ; (h) and his lia- bility is in all cases dependent upon the pecuniary means at the wife's disposal, (i) A mere covenant or agreement to make an allowance for the wife's maintenance will not of itself exonerate the husband from his liability. He must show that the covenant has been fulfilled, and that the allowance has been regularly paid, and that it is sufficient, or has been accepted by the wife as sufficient, for her suitable support, (k) Where a husband con- ic) Emery v. Emery, 1 Y. & J. 505, (A) Hindley v. AVestmeath, 6 B. & C. 606. 200. (fO Dixon V. Hurrell, 8 C. & P. 719. (i) Mizen v. Pick, 3 M. & W. 481 ; (c) Johnston v. Sumner, ante, p. Tod v. Stokes, 12 Mod. 245. As to the * 134. liability of a lunatic husband, see post, (/) Reed v. Moore, 6 C. & P. 200. p. • 150. {g) Bradshaw v. Beard, 12 C. B, N. s. (k) Nurse v. Ciaig, 2 B. & P. N. E.. 344; 31 L. J. C. P. 273. 148; Burrett v. Booty, 8 Taunt. 343. 224 CHAP. I.] THE PARTIES. * 146 sents to his wife living apart from him, on the terms that she shall accept an allowance, which is paid, slie has no authority to pledge his credit, although the allowance is inadequate, for the consent to the separation is given upon the terms that she agrees to the adequacy of the allowance. (I) If the husband, from any of the preceding causes, is absolutely discharged from his obli- gation to maintain the wife, the latter does not, in consequence thereof, acquire any power or capacity of contracting on her own account so as to incur any liability upon her contracts. She lierself remains exempt, by reason of the coverture, from all per- sonal responsibility ex contractu ; though he who trusts her may in general, if she has property settled to her separate use, take proceedings to make that property available for the satisfaction of her debts, (m) Effect of a Decree for a Judicial Separation. — By the Divorce Act, 20 & 21 Vict. c. 85, sect. 26, it is enacted that, in every case of a judicial separation, the wife shall, whilst so separated, be considered as a feme, sole for the purposes of contracting and suing and being sued, and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any costs she may incur as plaintiff or defendant ; but where, upon any judicial separation, alimony has been decreed or ordered to be paid to the wife, and the same has not been duly paid by the husband, he is then liable for necessaries supplied for the wife's use. {n) By the 21 & 22 Vict. c. 108, sect. 8, no discharge, vari- ation, or reversal of any decree for a judicial separation is to prejudice or affect any rights or remedies which any person would otherwise have had in respect of any debts, con- tracts, or acts of the wife * incurred, entered into, or [ * 146 ] done, between the making of the decree and the dis- charge, variation, or reversal thereof (o) Orders for the Protection of the Property and Earnings of a De- serted "Wife place the wife during the continuance of the order and the desertion in the like position in all respects with regard (I) Biffin V. Blgnell, 7 H. & N. 877; (n\ Hunt v. De Blaquiere, 5 Bing. 31 L. J. Ex. 189; Eastland v. Birchell, 650. 3 Q. B. D. 432. (o) See Nicholson i). Drury Buildin'gs (m)Aiite, p. *139; Murray t). Barlee, Co., 7 Ch. D. 48. M. & E. 220. VOL. I. 15 225 * 146 FORMATION OF CONTRACTS. [BOOK L to property and contracts, and suing and being sued, as if she had obtained a decree for a judicial separation, (p) Such orders are however, confined to money or property acquired by lawful industry, and do not extend to property acquired by keeping a brothel. (2) Transportation of the Husband for a Term of Years operates as a suspension of the civil and marital rights of the husband during the continuance of the term of banishment, (»■) and until he has actually returned to this country after the expiration of his sen- tence, (s) He is not, when the exile is a mere temporary exile, civilly dead ; (t) but the effect, as regards the capacity of the wife to contract and to be sued as a feme sole, is precisely the same as if he were so. But a voluntary absence beyond the sea, on the part of the husband, or a compulsory absence in the service of tlie state, does not in anywise alter or affect the legal position of the wife. If the husband has been banished for the term of his natural life, he is civilly dead, and the wife is then remitted to the position of a. feme sole, {u) If the husband is an alien enemy, lie ha.s no legal existence in this country ; and so long as he remains in that position, his wife resident here is looked upon as a feme sole ; and she is consequently liable to be sued upon all contracts entered into by her, just the same as if she were a widow, (y;) But if he is an alien ami, his wife is in the same plight as any other married woman. Death of the Husband. — The death of the husband does not render the wife responsible upon any contracts made by her during coverture ; nor is she responsible upon any promise, made after the death of the husband, to pay for things furnished her in his lifetime, as such a promise is without consideration. (?/) Contracts entered into by the wife after the death of the hus- band, but before it was known, are not binding on her. (z) {p) 20 & 21 Vict. c. 85, sect. 21; 21 (x) Derry v. Duchess of Mazarine, 1 & 22 Vict. c. 108, sects. 6-10. Eaym. 147; but see De Wahl v. Branne, (q) Mason V. Mitchell, 3 H. & C. 528; 1 H. & N. 178 ; 25 L. J. E.x. 343. 34 L. J. Ex. 68. (y) Meyer v. Haworth, 8 Ad. & E. (r)Ex parte Franks, 1 M, & Sc. II. 467. (s) Carroll v. Blencow, 4 Esp. 28, (~) Smout v. Ilberry, 10 M. & W. 1; ' (t) Co. Litt. 133 a. Blades v. Free, 9 B.& C. 167; Potli. (a) Co. Litt. 133 a; Countess of Port- Obi. No. 81. land V. Prodgers, 2 Vern. 104; Ex parte Franks, 1 M. & Sc. 11. 226 CHAP. I.] THE PARTIES. * 147 Iiiabilities resulting from Reputed Marriages. — " If a man," * observed Lord Kenyon, " has permitted a woman [ * 147 ] to whom he was not married to use his name and pass for his wife, and in that character to contract debts, he is liable for her debts, whether the tradesman who furnished the goods knew the circumstance to be so or not. But this must not be taken to apply to the case of a common strumpet, who may as- sume the name of a person without his authority, from having casually known him ; it must be where the man permits the woman to assume his name, where she lives in his house, and is part of his family."(a) And it matters not whether the man so acting is a married man or a single man. If he lives with the woman, and gives her every appearance of being his wife, the proof of a previous marriage with some other woman cannot ex- onerate him from liability, (b) Having once held out the woman as his wife, the reputed husband is bound, when the connection ceases, to make the termination of it notorious, in order to escape from the difSculties of his position, (c) Contracts with Bankrupts. ^ — For the protection of persons having bona fide dealings with a bankrupt after the act of bank- ruptcy, but without notice of it, it is enacted by the Banlcruptcy Act of 1869 that nothing in that act shall render invalid any con- tract or dealing with any bankrupt made in good faith and for valuable consideration before the date of the order of adjudica- tion by a person not having, at the time of making such contract or dealing, notice of any act of bankriaptcy committed by the bankrupt and available against him for adjudication. (rZ) The act also provides that, subject and without prejudice to the pro- visions of the act relating'to the proceeds of the sale and seizure ^ It will be observed that the matters mentioned in the text relate only to tlie operation and effect of an existing bankrupt law upon the power of various parties to make contracts; these topics have lost importance in this country, for the pres- ent time, at least, by the repeal of our bankrupt law. The effect of a discharge in bankruptcy upon any contract to which it applies — a subject of more permanent importance — is treated ^osi, pp. *1243-*1247, where American cases will be mentioned. (a) Watson v. Threlkeld, 2 Esp. 637. to what are protected transactions under (b) Eobinson v. Nahon, 1 Camp. 245. this section, see In re Waugh, eix parte (c) Ryan v. Sams, 17 L. J. Q. B. 271; Dicken, 4 Ch. D. 524; Ex parte Jay, 14 12 Q. B. 460. Ch. D. 19, C. A. ; Ex parte Richdale, (d) 32 & 33 Vict. c. 71, sect. 94. As 19 Ch. D. 409, C. A. 227 * 148 FOEMATION OF CONTRACTS. [BOOK I. of goods of a trader, and to the provisions avoiding certain settle- ments, and avoiding, on the ground of their constituting fraudu- lent preferences, certain conveyances, charges, payments, and judicial proceedings, the following transactions by and in rela- tion to the XJroperty of a bankrupt shall be valid, notwithstanding any prior act of bankruptcy : Any disposition or contract with respect to the disposition of property by conveyance, transfer, charge, delivery of goods, payment of money, or otherwise, how- soever made, by any bankrupt in good faith and for valuable consideration, before the date of the order of adjudication, with any person not having at the time of the making of such disposi- tion of property notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication, (e) Liabilities of Trustees in Bankruptcy. — If the trus- [ *148 ] tees of a * bankrupt permit the bankrupt to carry on his trade for the benefit of the estate, they will be respon- sible for the payment of the price of goods ordered and used by him in the exercise of such trade. (/) But one trustee is not responsible at common law for tilings ordered or work done by one of his colleagues without his knowledge, sanction, or authority. Contribution betwreen Trustees in Bankruptcy. — If in the course of the administration of the estate the trustees enter into joint contracts and incur a joint liability thereon, and one alone is compelled to pay the whole amount due on such contracts, he has a right to an action for contribution against his co-trustee, whether the latter has or has not in his hands any funds from the bankrupt's estate, (//j Contracts with Drunkards. ^ — A party who makes a contract in such a state of drunkenness as not to know what he is doing, 1 The effect of drunkenness on contracts needs to be viewed in three aspects: 1. The contract of a pei'son who was at tlie time of making it actually intoxicated to such a degree as to destroy his powers of reason and rellection, is voidable because of the mental incapacity to give a ^'alid consent, and irrespective of whether the other party to the contract co-operated in causing the intoxication. Caulkins v. Fry, 35 Conn. 170 ; Eeinskopf v. linggc, 37 Ind. 207 ; Mansfield v. Watson, 2 Iowa, 111 ; Pickett v. Sutter, 5 Cal. 412; Drumniond v. Hopper, 4 («) Sect. 95. (f/) Hart v. Biggs, Holt, 245; Bevan (/) Kinder v. Howarth, 2 Stark. 35i. o. Whitniore, 15 C. B. N. ». i33, 763. 228 CHAP. l] THE PARTIES. * 148 cannot be compelled to perform that contract by the other party who knew him to be in that state. A man who takes an obliga- Harr. (Del.) 327 ; Jeniiers v. Howard, 6 Blackf. 240 ; Cummings v. Henry, 10 lud. 109 ; Joest v. Williams, 42 Ind. 365 ; Prentiss ». Achoni, 2 Paige, 30 ; Bur- roughs V. Eichman, 13 N. J. L. 233 ; French v. French, 8 Ohio, 214 ; Wilson v. Bigger, 7 Watts & S. Ill ; Wade v. Colhert, 2 Mill, Const. 27, 12 Am. Dec. 652; heev. Ware, 1 Hill (S. C), 313; Birdsong v. Birdsong, 2 Head, 289; Belcher v. Belcher, 10 Yerg. 121 ; Barretts;. Buxton, 2 Aik. 167; Foot©. Tewksbury, 2 Vt. 97- Either the party himself or his representatives can raise the objection. Broadwater t'. Dame, 10 Mo. 277; Wigglesworth v. Steers, 1 Hen. & M. 70, 3 Am. Dec. 602. The doctrine as to degree is that the intoxication must be such as deprives the person of reason or of the knowledge of what he is doing, and readers him -non compos mentis for the time being; mere drunkenness, disturbing the judgment but not disabling the subject from giving assent, does not exonerate from liability, Oaulkins v. Fry, 35 Conn. 170; Harbison v. Lemon, 3 Blackf. 51, 23 Am. Dec. 378; Henry v. Eitenour, 31 Ind. 136; Bates c. BaU, 72 111. 108; Woodson v. Gordon, Peck, 196, 14 Am. Dec. 793; Johns ». Fritchey, 39 Md. 258; Cavender V. Waddingham, 5 Mo. App. 457; Wade v. Colvert, 2 Mill, Const. 27, 12 Am. Dec. 652. The doctrine applies only to express contracts or such as . Sherman, 14 Barb. 169; McDonald v. Morton, 1 Mass. 543; Wadsworth v. Sharpsteen, 8 N. Y. 229 * 148 FORMATION OF CONTKACTS. [BOOK I. tion from another so circumstanced is guilty of actual fraud. Therefore where an action was brought upon a bill of exchange by the indorsee against the indorser, and the defendant pleaded that at the time he indorsed the bill lie was so drunk as to be unable to comprehend the meaning or effect of the indorsement, or to contract thereby, of which the plaintiff at the time of the indorsement had notice, it was. held that the plea was a good answer to the action, (h) But a contract made by a man in a state of drunkenness is voidable only, and not void ; and there- S88; Inihoff v. Witnier, 81 Pa. St. 213 ; L'Amoureux«. Crosby, 2 Paige, 422; Ke Patterson, i How. Pr. 34 ; see also Patter's Appeal, 69 Pa. St. 9; Klohs v. Klolis, 61 Pa. St. 245. Dr. Eay says the common law of England has neyer considered drunkenness alone a sufficient reason for invalidating a deed or agreement, except when carried to that excessive degree which deprives the party of all consciousness of what he is doing. Courts of equity also have strenuously refused relief in cases of moder- ate drunkenness, unless it were procured by the contrivance of the other party, or ■were made the means of obtaining some unfair advantage. The general doctrine to be derived from modern English decisions is : 1, that moderate drunkenness does not necessarily deprive the mind of the power of rational consent, is not always apparent to others, and ought not of itself to avoid any deed or contract; 2, that inasmuch as excessive drunkenness deprives a person, more or less, of the consciousness of what he is doing, and is perfectly obvious to every one, all acts executed while in this condition may be avoided at law on the ground of incom- petency, and in equity on that of fraud. In this country the English practice has been followed; 21 Am. Jur. 5; and in France the courts have been governed by similar views. Pothier, Traite des Oblig. by Evans, 26, Writers on natural and public law have regarded drunkenness under any circuro.stances as a sufficient cause for avoiding any acts that may have been executed under its influence, upon the principle that the free and deliberate consent of the understanding is essential to the validity of such acts. Puffendorf, Law of Nat. & Nat., c. 4, sect. 8; Eay, Med. Jur. Ins. sect. 558. As to avoidance of contracts or dealings of persons who have been rendered imbecile by long-continued habits of drunkenness, though pei'haps not specially intoxicated at the time of the transaction in question, see Mansfield v. Watson, 2 Iowa, 111; Wilson tr. Bigger, 7 Watts & S. Ill; White ti. Cox, 3 Hayw. 79; Bird- song r. Birdsong, 2 Head, 289; Conant i'. Jackson, 16 Vt. 335. A man of weak intellect from habitual drunkenness, and incapable of managing his own affairs, may make a contract for necessaries, including such things as are useful and proper for his station. He may make a contract with an attorney to have a guardian appointed for his protection under the statute ; and the attorney can recover a reasonable fee from the estate of the drunkard for the value of ser- vices rendered in procuring the appointment of a guardian and for moneys expended for costs. Darby v, Cahanne, 1 Mo. App. 126. (h) Gore v. Gibson, 13 M. & W. 623; 33; Fenton ■». Holloway, 1 Stark. 126; 14 L. J. Ex. 152; Cole v. Eobins, Bull. Hamilton v. Grainger, 5 H. & N. 4; N. P. 172 a; Pett v. Smith, 3 Campb. Poth. Obligations, No. 49. 230 CHAP. I. J THE PAKTIES. *148 fore the drunken man may, if he pleases, ratify it after he becomes sober, and it will then be binding upon him. (i) It has been said that a bill of exchange or a promissory note, indorsed or accepted or made by a person in a complete state of intoxication, cannot be enforced as against the drunkard by a bo7ia fide holder who received and gave value for it on the credit of the accept- ance or indorsement or signature, in ignorance of the drunkenness and of the fraudulent circumstances under which the instrument was obtained ; (k) but this seems very doubtful, and it is clearly otherwise if the party was only partially intoxicated at the time he accepted or indorsed the instrument. Q) Contracts -with Lunatics. ^ — If a party to a contract was at the time he entered into the engagement a lunatic or of ^ The general principles are: 1. Mere weakness of mind alone does not impair a person's contracts; but actual insanity or idiocj' existing at the time of con- tracting renders the contract voidable in the interest of the party or his represen- tatives, on the ground of want of capacity to give assent. The insanity must either be general, or involve the subject-matter of the contract; a monomania on a topic not connected \vith the transaction impeached does not avoid it. In degree, the insanity must have been sufficient to disable the person from comprehending the nature and consequences of his act, — from transacting the particular business rationally, — and there is con.«iiderable authority for the position that it must have been of such character that the other contracting party might have detected or at least suspected it by use of ordinary care. Ratification after regaining reason may cure the defect. How far executed contracts, contracts for necessaries, and rights of a purchaser for value and without notice are exempted from the doctrine is not clearly settled. 2. Delusions, intermittent insanity, weakness or imbecility of mind, and the like, insuflScient in degree to impair the contract directly, may be proved in connection with unfairness of the bargain, inadequacy of consideration, or other indicia of fraud, as additional reason for granting equitable relief on the ground of fraud. 3. One who has been adjudicated a lunatic and for whom a committee has been appointed is thereby disabled from all ordinary dealings in the nature of executory contract, irrespective of recurrence of lucid intervals or of alleged capacity at the moment when the particular contract was made; and the inquest is a proceeding in rem of which all persons have constructive notice. The decisions are too numerous to be gathered in a brief note. The whole sub- ject is lucidly and comprehensively treated in Ordronaux's Judicial Aspects of Insanity, c. 6, Of Mental Disabilities and their Effects upon Ciuil Eights, which discusses undetected lunatics, conveyances by lunatics, agency, and partnership as affected by lunacy, marriages of the insane, their parol agreements, promissory notes and contracts for necessaries, and defeasances of a lunatic's contract. See also 1 Abb. L. Diet. tit. Insanity, A, p. 623; Ewell, Lead. Cas. Inf., &c., pp. 522- 720; Ray, Med. Jur. Ins. c. 26, 27; U. S. Dig. tit. Contracts, sects. 1272-1282; and ib. tit. Insane Persons; article on Contracts of Incompetents, 15 Alb. L. J. (i) Matthews v. Baxter, L..E. 8 Ex. (k) Sentance v. Poole, 3 C. & P. 1. 132. (?) Shaw i>. Thackray, 17 Jur. 1045. 231 * 149 FOKMATION OF CONTEACTS. [BOOK I. [*149] unsound *niind, and any imposition appears to have been practised upon him or any advanta^'e taken of his 292; Wirebach v. First Nat. Bank of Eastoa, 21 Am. L. Reg. N. s. 29, and note by M. D. Ewell, ib. 35; Jones v. Jones, 21 Am. L. Reg. N. s. 666, and note by M. D. Ewell, ib. 670; Hough v. Hunt, 2 Ohio, 495, 15 Am. Dec. 569, and ib. 573, note ;Hir3ch v. Trainer, 3 Abb. N. Cas. 274, and ib. 280, note. Recent cases are : Mere feebleness of mind does not render a person incapable of making a valid contract; and a contract or deed made by a weak-minded man will not be declared void on that ground, in the absence of evidence that unfair advantage was taken of his infirmity. Marmon v. Marmon, 47 Iowa, 121 ; Francke V. His wife, 29 La. Ann. 302 ; Gain v. \\'arford, 33 Md. 23; and see Wray v. AVray, 32 Ind. 126. Mutual assent of the parties being necessary to a valid contract, it follows that if either is at the time of unsound mind, so as to be incapable of giving such assent as the law requires, the obligations of a contract do not arise ; and although such party had not previously been adjudged insane, his disability may be shown in defence of an action against him upon the contract. Musselman v. Cravens, 47 Ind. 1. Tlic (executory) contracts of persons of unsound minds, but whose unsound- ness has not been judicially declared, while not void, are voidable, and in a proper case may be disaffirmed upon the removal of the disability (Freed v. Brown, 55 Ind. 310; McClain v. Davis, 77 Ind. 419; Turner v. Rusk, 53 Md. 65), or may be ratified (George v. St. Louis, &c. By. Co., 34 Ark. 613). An insane person is not bound by liis contract of suretyship, even though the creditor accepted Iiim as surety without knowledge of his incapacity. Van Pattou V. Beals, 46 Iowa, 62. A party notoriously insane, whether interdicted or not, is incapable of executing a valid contract with one aware of Iris insanity. So held as to a mortgage exe- cuted by the attorney in fact of an imbecile. Fecel v. Guinault, 32 La. Ann. 91. An insane person cannot be held liable for board and expense in an asylum, where the evidence shows that he was admitted under a contract with others to pay his board and expenses. Massachusetts General Hospital v. Fairbanks, 129 Mass. 78. Where a person is of so unsound u, mind that his want of mental capacity is apparent to any one of ordinary prudence and observation conversing with him, an exchange of property made by him is invalid, and a guardian afterwards appointed may recover his ward's property without tendering back that which was received in exchange for it. Halley v. Troester, 72 Mo. 73. If the proof only shows a case of insanity directly connecteil with some violent disease, the party alleging the insanity must bring his evidence of continued insanity to that point of time which bears directly upon the contract impeached. Turner v. Rusk, 63 Md. 65. In determining the ability of an alleged insane person to execute any particular act, the first inquiry should bo : What degree of mental capacity is essential to the proper execution of the act in question ? and then. Was such capacity pos- sessed at the time by the party! Hall v. Unger, 2 Abb. U. S. 507; 4 Sawyer, 672, aff 'd 15 Wall. 9; Lozear v. Shields, 23 N. J. Eq. 509. For the execution of a power of attorney to convey land, the party should pos- sess sufficient mind and memory to understand the nature of the biisiness and know the character and location of the property, and the object and effects of his act ; in other words, it is essential that he should recollect that he is owner of the 232 ^^^^- ^-J THE PARTIES. * 149 infirmity by the other contracting parties, the contract will be void, as having been procured by fraud ; but if tlie contract is a property, be able to identify the place where it is situated, and be aware that the instrument will confer authority for a sale of it. Hall v. Uuger supra Where the form of insanity is such as does not affect the capacity to transact business, the busmess transactions of the party are not impaired : as where it appears that he assented to a sale of his property by his guardian with intelligent knovvledge, and has received the benefit of the purchase-money. Searle v. Gal- braith, 73 111. 269 ; s. p. Titcomb v. Vantyle, 84 111. 371. A deed cannot be impeached on the ground tliat the gr'antor was a monomaniac, when his monomania did not extend to the subject out of which the conveyance grew, nor atTect his reason or judgment in matters of business. Burgess v. Pol- lock, 53 Iowa, 273; Lozear v. Shields, 23 N. J. Eq. 509. That the person was "of weak and feeble intellect and incapable of taking care of himself," is not enough. Lawrence v. Willis, 75 N. C. 471. A contract to convey land was executed subsequently by giving a deed. Eeld, that if the grantor was sane when he executed the contract, his vendee took a good title in equity ; if he was sane when he executed the deed the title was good in law ; and although the grantor might be a monomaniac, if the contract and deed were not affected by his monomania, they would be sustained. Ekin v. McCracken, 11 Phila. 534. One who while insane executed a release of a demand for damages for per- sonal injuries, may ratify it after reason returns; and keeping the consideration received, if done with a sane recollection of the circumstances, may operate as a ratification. George v. St. Louis, &e. Ey. Co., 34 Ark. 613. Where the party has partly executed the contract, and the claim made is upon his behalf to rescind it, the fact that since the partial execution the parties cannot be placed in statu quo, will forbid allowing a rescission. Wilde v. Weakley, 34 Ind. 181 ; Musselman -u. Cravens, 47 Ind. 1; s. P. Scanlan v. Cobb, 85 111. 296. tint if the contract still remains executory, the courts will not enforce it against one who is shown to have been of unsound mind when he made it. Musselman v. Cravens, supra, and cases cited. A purchaser of a promissory note, payable in bank, given upon an unexecuted consideration to one who knew of the maker's disability, takes it with construc- tive notice of all legal disabilities of the parties, such as unsoundness of mind. McClain v. Davis, 77 Ind. 419. Where A, in good faith and without information to put him on inquiry as to the sanity of B, has lent B money, A may recover the same of B, although B has afterwards, upon inquisition taken, been declared to be insane. Mutual Life Ins. Co. V. Hunt, 79 N. Y. 541. One who has indorsed the notes of a self-constituted agent of a lunatic to enable such agent to raise money ostensibly for the benefit of the family of such lunatic, which money was used by the agent in cultivating the farm of the lunatic, can only recover in a suit against the lunatic, upon the note signed by the agent, so much of his debt as he can show was actually expended for the necessary support of the lunatic, and such of his family as were properly chargeable upon him. Surles V. Pipkin, 69 K. C. 513. Where the defence to an action was mental incapacity to make a contract and fraudulent inducement thereto, — liCeld, that it was proper to instruct the jury that, if the want of incapacity was only partial, they might nevertheless consider 233 * 149 FORMATION OF CONTRACTS. [BOOK I. fair and honest contract, and bears no symptoms of the infirm- ity of mind of the party sought to be charged thereon, the courts will enforce it like any other contract, {m) A lunatic, •whether the ilefendant might not move easily be deceiyeJ than a person of strong mind. Galpin v. Wilson, 40 Iowa, 90. Where one of the parties to a contract at the time of its execution was labor- ing under mental weakness, a court of equity will investigate the consideration and determine its sufficiency, and pass upon the party's mental state and condi- tion; and if inadequacy of consideration and mental imbecility occur, although the weakness of mind does not amount to idiocy or legal incapacity, the con- tract will be annulled at the instance of the proper party. In such cases it is not necessary to show that the party was actually misled by fraud or undue influ- ence. Cadwallader v. West, 48 i\Io. 483. See also Wray v. Wray, 32 Ind. 126; Oherbonnier v. Evitts, 5G Md. 276; Jacox v. Jacox, 40 Mich. 473; Buffalow v. Buffalow, 2 Dev. & Bat. 241. Although a person may have been adjudged insane, yet if no conservator has been appointed and he is in the management of his business, and there is nothing about his appearance to indicate his incapacity to contract, and he purchases at a iair and reasonable price an article necessary and useful in his business, the seller having no notice of his being adjudged insane, he will be liable to pay the price he agreed to pay. McCormick v. Littler, 85 111. 62; and see Scanlon u. Cobb, ib. 296. The common law rule that the estate of an insane person over twenty-one years of age and under guardianship is liable for necessary nursing and care fur- nished in good faith and under justifiable circumstances, is not changed by a statute providing that such person shall be deemed incapable of making any contracts, &c. This prohibits express contracts by the persons described; but their estates may be held when the law implies a contract, and are legally as well as equitably liable for necessaries furnished in good faith and under proper cir- cumstances. Sawyer v. Lufkin, 56 Me. 308. To nearly same effect, Van Horn V. Hann, 39 IST. J. L. 207. A, who had been in the habit of buying cement from plaintiff, became insane. B was duly appointed his guardian, and with the consent of the probate court continued to buy cement, which he used in carrying on the business previously conducted by A. Plaintiff had full knowledge of all the facts. Held, that neither A's estate nor B was liable for the price of the cement. Western Cement Co. V. Jones, 8 Mo. App. 373. The deed of an insane man not under guardianship is not void, but voidable; but a deed made after the appointment of a guardian is void. Elston v. Jasper, 45 Tex. 409; s. P. Nichol v. Thomas, 53 Ind. 42; Mohr v. Tulip, 40 Wis. 66. The fact that one is put under guardianship for insanity does not warrant a court in holding that an agency previously created by him is thereby terminated, it not appearing that the insanity was of that character which disqualifies a per- son from entering into a valid contract. Thus, where one placed his wife in charge of his business at home, and went to an asylum for inebriates to be treated, and was there put under guardianship for insanity, — Held, that the court should refuse to charge that the guardianship put an end to the agency of the wife, in the absence of any proof of the character of the insanity. Motley v. Head, 43 Vt. 633. (to) Man by v. Bewicke, 3 K. & J. 342 ; Jenkins v. Morris, 14 Ch. D. 674. 234 CHAP. I.] THE PARTIES. * 149 however, will not be bound by any deed entered into by him, (n) unless it be shown that it was entered into during a lucid inter- val ; and if it be a necessary and beneficial contract for him to enter into, such as a lease of his lands at an advantageous rent, the nature of the contract may be prima facie evidence of its having been made during a lucid interval, (o) An action for the price of goods sold and delivered, or of work done, or for the hire of horses, carriages, or servants, cannot be defeated by showing that the defendant had been found by inquisition to be a lunatic at the time he received the goods, or had the benefit of the work, or the use of the horses, carriages, and servants ; (p) for the law will not permit the lunatic's infirmity to be made an instrument of fraud upon third parties who have dealt with him in good faith, (g) If a lunatic, apparently of sound mind and not known to be otherwise, enters into a fair and lonafde contract, such contract cannot afterwards be set aside. Therefore where a lunatic purchased of an assurance company two annuities for his life, and paid down the purchase-money, the company having at the time no knowledge of his lunacy, it was held that the con- tract could not be avoided. (?•) And where a lunatic contracted for the purchase of an estate and paid down a deposit, and the vendor treated fairly and in good faith, and in ignorance of the infirmity of the lunatic, it was held that the deposit could not be recovered baek..(s) Although contracts by lunatics cannot be carried into execution against them, yet if they were of sound mind when the contract was made, and the imbecility of intel- lect has subsequently intervened, the rights of the parties will not be altered, {f) The lunacy of a husband is no answer to an action brought against him upon the ordinary implied contract (n) Yates v. Boen, 2 Str. 1104 ; {q) Nelson v. Duncomlie, 9 Beav. Thompson n. Leech, 3 Salk. 301; Viia. 211; 15 L. J. Ch. 296. Abr. (Lunatic); Beverley's case, 4 Co. (r) Molton v. Camroux, 4 Exch. 17; 123 b. 18 L. J. Ex. 68, 358. (o) Sergeson v. Sealey, 2 Atk. 413; (s) Beavan v. M'Donnell, 9 Exch. Faulderif. Silk, 3 Campb. 126; Cieagh 309; 23 L. J. Ex. 94; Briee v. Berring- V. Blood, 2 Jones & Lat. 609. ton, 3 Mac. & G. 486. (p) Brown v. Jodrell, 3 C. & P. 30; (t) Ld. Eldon, Owen v. Davies, 1 M. & M. 105; Niell v. Moriey, 9 Ves. Ves. sen. 82; Hall u Warren, 9 Ves. 478; Dane v. Kirkwall, 8 C. & P. 679; 605. Bagster v. Earl of Portsmouth, 7 D. & E. 614; 5 B. & C. 170. 235 * 150 FORMATION OF CONTRACTS. [BOOK I. in respect of necessaries furnished to his wife;(«) [*150] *for the autliority given bylaw to a destitute wife to pledge the credit of her husband for her support is not revoked by the husband's becoming insane. Where tlie husband whilst of sound mind had given the wife authority to deal with the plaintiff, and she, after he had become insane, ordered goods, and the i^l'-^i-^tiff was not aware of tlu insanity of the husband, it was held that the husband upon his recovery might be sued for the goods, (a;) But the authority of a wife to pledge her husband's credit is not greater in the case of a lunatic husband than in the ordinary case of husband and wife ; and, therefore, if she has an income adequate to maintain her in her station of life, she cannot pledge the lunatic husband's credit, {y) Equity will raise an implied contract, and enforce a demand against the lunatic or his estate for moneys expended for the necessary protection of his person or estate, (s) Contracts with Alien Friends. — Every subject of a friendly state resident in this country has the same power of entering into and enforcing personal contracts as the natural-born subjects of the realm, (a) Formerly an alien could not pui'chase or hold any estate of freehold or inheritance in lands or tenements, because such an interest in the soil was supposed to require a permanent allegiance ; and he could not, therefore, lawfully enter into or enforce any contracts connected ■with the acquisition and enjoyment of freehold estates. (5) By the 7 & 8 Vict. c. 66, sect. 4 (repealed by the 33 Vict. c. 14, infra), every alien, being the subject of a friendly state, might take and hold every species of personal yiroperty whatever, except chattels real, by purchase, gift, representation, or otherwise, as if he were a natural-born subject; and every alien friend residing in this country might, by grant, lease, demise, assignment, or otherwise, take and hold any lands, houses, or other tenements, for the purpose of resi- dence or occupation, or for the purpose of any business, trade, (u) Reed v. Legard, 20 L. .J. E.x. 309; (.:) Williams v. Wentworth, 5 Beav. 6 Exch. 636; Daridson v. Wood,' 1 De 325; Stedman v. Hart, Kay, 607. G. J. & S. 465; 32 L. J. Ch. 400. (a) Com. Dig. Alien, c. 5 ; Open- la) Drew V. Nunn, 4 Q. B. D. C61, heimert). Levy, 2 Str. 1082. C. A. (b) Calviii',s case, 7 Co. 23 a; Co. (y) Richardson v. Du Bois, L. R. 5 Litt. 2 b ; 1 Woodd. lect. Aliens; Roll. Q. B. 61; 39 L. J. Q. B. 69. Abr. 194. 236 CHAP. I.] THE PAETIES. * 151 or manufacture, for any term of years not exceeding twenty-one years, (c) And now, by the 33 Vict. c. 14, real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as, by a natural-born British subject. But nothing in that act is to qualify an alien to be the owner of a British ship, {d) If after a contract has been made with an alien friend a war breaks out between his country and this, his right of action on the * contract is suspended until the return of peace, (e) [ * 151 ] The crown may indeed, if it tJiinks fit, lay hands on all his debts and clioses in action, and prevent him. from afterwards putting them in suit ; but if it does not think fit so to do, his rights are restored on the return of peace. (/) Contracts with Alien Enemies. ■ — All alien enemies, and all Briti.sh subjects and subjects of neutral nations domiciled in any enemy's territory or engaged in the service of a hostile power, (g) are disabled from contracting with British subjects unless they have obtained a license to trade. But they may lawfully pro- vide for the wants and necessities of Englishmen detained abroad, and may enforce contracts made for such purposes on the return of peace. (/;•) So long as hostilities last they are utterly disabled from suing in our courts of justice, although they may be sued if they reside within tHeir jurisdiction. In one case it was held that a natural-born subject might sue in trust for an alien enemy ; (i) but this decision seems to ■ be at variance with numerous authorities, (k) If a subject of a state at war with this country resides here with the license and per- mission of the crown, he has the same rights and privileges as an alien friend. (Z) But the mere fact of the residence of a party (c) The statute 32 Hen. VIII., u. 16, {h) Antoine v. Morshead, 6 Taunt, sect. 1-3, is virtually repealed. 237; Duhainmel D.Pickering, 2 Stark. 92. {d) Sect. 14. (i) Daubuz v. Morshead, 6 Taunt. (e) Flindt v. Waters, 15 East, 260; 382. Co. Litt. 129, b.; Boussmaker, exparte, (k) Brandon v. Nesbitt, 6 T. E. 23; 13 Ves. 71. Bristow v. Towers, ib. 35; Brandon v. (/) 1 Eolle, Abr. Alien, B. pi. 3; Curling, 4 East, 413; Warin d. Scott, 4 Bro. Denizen, pi. 16, 20. Tannt. 605 ; Albrecht v. Sussman, 2 (g) Roberts u. Hardy, 3 M. & S. Ves. & B. 323; Willison v. Patteson, 7 534; M'Connell i>. Hector, 3 B. & P. Taunt. 447; Kensington v. Inglis, 8 113; O'Mealy v. Wilson, 1 Campb. 482; East, 288. The Ocean, 5 Rob. 90. (l) Wells v. Williams, 1 Ld. Eaym. 237 *152 FORMATION OF CONTEACTS. [BOOK I. in this country without disturbance or interruption is not evi- dence of a license from the crown, unless it be shown that the government was cognizant of his being here, and sanctioned his stay, (m) Prisoners at War, remaining in the realm under the protection of the crown, may enter into and enforce personal contracts, unless the crown interferes to prevent them. They may sue for the wages of labor, or for the price of goods sold and delivered ; and they appear to have the same civil rights and privileges as alien friends, (m) Disabilities of Convicts. — When a person has been convicted of treason or felony, and has been sentenced to death or penal servitude, he is precluded by the 33 & 3-4 Vict. c. 23, from alienating or charging any property, or making any con- [*152] tract, (o) *The convict may, ho%vever, make contracts when he is lawfully at large under any license, and may sue in respect thereof, (jo) And his disability ceases alto- gether when he has suffered his punishment or received a pardon, (q) The administrator of a convict's property, appointed in the manner prescribed by the act, (r) may let, mortgage, sell, convey, or transfer any part of such property at his discretion ; (s) and all such contracts, bona fide made by the administrator under the powers of the act, will be binding on the convict, and on all persons claiming an interest in the property by virtue of that act. {() Disabilities of Outlaws. — "When a person has been outlawed he is civilly dead, and is incapable of enforcing any contract he may have entered into, (w) although he is liable to be sued thereon, (x) An attainted man, although civilly dead for some purposes, is nevertheless capable of contracting in a foreign country a mar- 282; 1 Salk. 46; Casseres v. Boll, 8 T. claimed by a debtor's summons, and it E. 166; Vin. Abr. Alien (I) pi. 8. he fails he will commit an act of bank- (m) Boulton v. Dobree, 2 Campb. ruptcy. £?:jUttric Greaves, 19 Ch. D. 1. 162; Alclator v. Smith, 3 Campb. 244. (p) Sect. 30. (q) Sect. 7. (n) Sparenburgh v. Bannatyne, 1 B. (r) Sect. 9. (s) Sect. 12. k V. 170; Maria v. Hall, 2 B. & P. 236; (t) Sect. 17. 1 Taunt. 33, n. („) Hawk. P. C. lib. 2, c. 49, sect. 9. (u) Sect. 8. He can pay a debt (^) Macdonald i-.Eamsey, Foster, 61. 238 CHAP. I.] THE PARTIES. * 153 riage which will be deemed valid in England, if it was valid hy the law of that country. (?/) The incompetency to contract and sue may be removed by means of a reversal of the outlawry. Parties privileged from Actions and Suits. — A foreign sov- ereign cannot be sued in the courts of this country, unless he appears and consents to the action, (z) And even then he does not lose his rights as a foreign sovereign ; (a) and the same privi- lege was extended to the ambassadors and ministers of foreign reigning sovereigns, their secretaries and domestic servants, (b) Mandamus to Parties to Contracts. — By the Judicature Act, 1873, (c) sect. 25 (8), a mandamus may now be granted by an interlocutory order of the court (d) in all cases in which it shall appear to be just or convenient that such order should be made, either unconditionally or iipon terms. The meaning of this seems to be that the writ will be granted in tlie class of cases where ■ it would before have issued in the common law courts, but that the courts are to have a wide discretion as to the issue of the writ, * and also to facilitate the proceed- [ *153 ] ing by allowing the writ to issue upon interlocutory applications instead of being claimed by indorsement upon a writ or by pleadings in an action, without, in fact, an action of mandamus. («) It is said by Brett, L. J., that the mandamus here spoken of " is not the prerogative writ, but only a manda- mus which may be granted to direct the performance of some act, of something to be done, which is the result of an action where an action will lie:" (/) that is to say, that it is in the nature of a mandatory injunction, and not of a writ issuing (j/) Kynnaird v. Leslie, L. R. 1 C. such a writ in a cause liefore him. See P. 389; 35 L. J. C. P. 226. Ee Paris Skating Rink Co., 6 Ch. D. (z) Brunswick (Duke of) v. King of 731. It would seem, however, that the Hanover, 6 Beav. 1 ; Wilson v. Church, Queen's Bench Division is the proper 13 Ch. D. 1; Twycross v. Dreyfus, ante, court to issue such a writ. See Glossop p. * 71. V. Heston Local Board, 12 Ch. D. ixr (a) Vavasseur v. Krupp, 9 Ch. D. James, L. J. pp. 115, U6, per Brett, 351. L. J. p. 122. (J) 7 Anne, k:. 12. This, however, (e)See Wilson's Judicature Acts, is not so now, as sects. 1, 2, of the act 2d ed. p. 29 ; but see as to indorse- have been repealed; see Stat. Law Rev. ment for injunction, Colehoume v. Cole- 1867. hourne, 1 Ch. D. 690. {c) 36 & 37 Vict. c. 66, sect. 25 (8). (/) Glossop v. Heston Local Board, (d) A chancery judge may now issue 12 Ch. D. at p. 122. 239 * 153 FORMATION OF CONTRACTS. [BOOK I. where there has been a positive refusal to perform a public duty or negligence amounting to a positive refusal. Mandamus to Public Companies to make Calls. — Where a public board or corporate body is clothed with certain defined statutory powers, and is authorized to enter into contracts, and has the power of creating, by calls on shareholders, a future cor- porate property, from time to time, out of the private assets of its individual members, and contracts are made with the corporation on the faith that an honest exercise will be made of tliese powers, and it is clearly established that the corporation is evading the payment of its just debts and the due satisfaction of a judgment recovered against them, on the ground that they have no cor- porate assets in hand wherewith to pay, the court will, by man- damus, compel them to exercise the powers vested in tliem for raising funds, and answer the demands of their creditors, {g) But where an action has been brought against a corporation for a debt claimed to be due, and judgment has lieen recovered, and the plaintiff has the ordinary legal remedy of an execution, the court will not issue a mandamus merely because the execution may produce no fruits. (/() Mandamus to Local Boards, Commissioners, Trustees, and Public OfBcers to levy Races and satisfy and discharge a Judg- ment-debt or a Pecuniary Obligation. ^ — Whenever judgment has 1 Mandamus has often been issued from a circuit court of the United States to compel town, countj', o)' city ofiBceis created by State laws to perform a duty of levying and collecting a tax, and with the avails disehaiging a contract of their municipality owned by a citizen of another State. The general foundation of this jurisdiction is that the Constitution (art. 3, sect. 2), extends the Fedeial judicial jiower to cuntruversies between citizens of different States, and that acts of Congress have vested this power (when the value in controversy (■.\eeeds $500) in the Lir- cuit Courts (Act of March 3, 1875, 18 Stat, at L. 470; 1 l!ev. Stat. Supp. 173), and have ernpow"ered them to i.ssue writs of mandamus when necessary to the exercise of their jurisdiction (Rev. Stat. sect. 716). The writ thus used is neither a pre- rogative writ nor a new suit, but a proceeding ancillary to the judgment of the court upon the contract. The result is that oliligations of a municipality owned by a citizen of another State may be sued by him in the U. S. Circuit Court within the State where the debtor cmporation exists, and on his recovering judg- ment and satisfying the court that officers of the municipality are under a h'gal duty towards him (such a duty as may properly be enforced by mandamus) of {g) Eex V. S. Cath. Dock Co., 4 B. & (h) Reg. v. Victoria Park Co., 1 Q. Ad. 360. See Webb v. Commissioners B. 292. of Heme Bay, L. R. 5 Q. B. 642. 240 CHAP. I.] THE PARTIES. * 153 been recovered in a action against the clerk of a local board, or of commissioners or trustees in respect of something done by such commissioners or trustees in execution of statutory powers exempting them from personal liability, the judgment-creditor, when he fails to obtain satisfaction of his judgment-debt from the corporate estate and effects of the board, is in general en- titled to a mandamus to compel the board or other public body to levy a i-ate and discharge the judgment-debt. Wherever levying and collecting a tax for the payment of the debt he has reduced to judg- ment, and that compelling them to perform this duty is a necessary means of ob- taining satisfaction of the judgment, he may hare a mandamus for that purpose. On the general nature, grounds, extent, and limits of the jurisdiction, see 1 Abb. U. S. Prac. 253; Knox County v. Aspinwall, 24 How. 376; A^on Hoffman v. Quincy, 4 Wall. 535; Galena v. Amy, 5 Wall. 705 ; Walkley v. Muscatine, 6 AVall. 481 ; United States V. Keokuk, ib. 514; Bath County v. Amy, 13 Wall. 244; Graham v. Nor- ton, 15 WaU. 427; Lower i;. United States, 91 U. S. 536; Board of Liquidation v. McComb, 92 U. S. 531; Broughton v. Pensacola, 93 U. S. 266; United States i;. Clark County, 96 U. S. 211; Memphis u. United States, 97 U. S. 293; Memphis V. Brown, ib. 300; United States v. New Orleans, 98 U. S. 381; Lyell v. St. Clair County, 3 McLean, 580; Lansing v. County Treasurer, 1 Dill. 522; 2 Abb. U. S. 63; 9 Am. L. Eeg. N. s. 415; United States v. Sterling, 13 Int. Eev. Rec. 100; Biitton V. Platte City, 2 Am. L. J. Eep. 1 ; United States v. Supervisors, 2 Biss. 77; United States ■;;. New Orleans, 2 Woods, 230; United States v. Vernon County, 3 Woods, 281; Wisdom v. Memphis, 8 Cent. L. J. 109; 7 Reporter, 298; United States V. Jefferson County, 5 Cent. L. J. 310; 6 Reporter, 486; Ex parte Parsons, 1 Hughes, 282; Jenkins v. Culpeper County, ib. 568; Boro v. Phillips County, 4 Hughes, 216; United' States v. Buckingham County, 5 Hughes, 285; United States V. Mobile, 12 Fed. Reporter, 768. What facts or proofs will warrant the issue of a mandamus in these cases ; whether it should be an alternative or a peremptory writ ; and what are the grounds of defence on the merits, — see ."Supervisors v. United States, 4 Wall. 435; United States v. Clark County, 05 U. S. 769; 96 TT. S. 211; Memphis v. United States, 97 U. S. 293; United States v. Fort Scott, 99 U. S. 152; United States v. Macon County, ib. 582; United States v. Lee County, 2 Biss. 77; United States v. Sterling, ib. 408; United States v. Badger, 6 Biss. 308; Clews v. Lee County, 2 Woods, 474; Smith v. Tallapoosa County, ib. 596; Blair v. AVest Point Precinct, 5 Fed. Reporter, 265; United States ■». Labette County, 7 Fed. Reporter, 318; Moran v. Elizabeth, 9 Fed. Reporter, 72. How the proceedings should be conducted generally, and how obedience may be enforced, see Benbow V. Iowa City, 7 Wall. 313; Mayor v. Lord, 9 Wall. 409; United States v. Lee County, 2 Biss. 77; Downs v. Rock Island County. 4 Biss. 508; United States v. Town Auditors of Brooklyn, 8 Fed. Reporter, 473; United States v. Labetter County, 2 McCrary, 25. If the owner and holder of the municipal obligation is not a citizen of another State, he cannot ordinarily resort to the Federal courts, but must seek his remedy in the courts of the State in which the municipalitj' is situated. The law and practice of mandamus in the State courts vary somewhat, but are in general mod- elled on those of England, of the former Court of King's Bench especially. For gen- eral accounts, see High, Extraord. Rem. c. 1; and U. S. Dig. tit. Mandamus. VOL. I. 16 241 * 154 FORMATION OF CONTRACTS. [BOOK I. [* 154] public officers * have borrowed money upon the security of rates they are authorized to impose^ and liave not them- selves contracted any personal liability to pay, a mandamus will "0 to compel them to make a rate and repay the money, (i) If an act of parliament authorizes parish officers, commissioners of public works, or boards of health to enter into contracts for public works, to employ subordinate salaried officers, and to charge the costs and expenses they incur upon rates they are authorized to impose, and contracts are made by them, and officers appointed, and expenses incurred, and there is no personal liability to pay, and the ordinary remedy by way of action is not available, the court will by mandamus compel them to make a rate, and pro- vide themselves with funds, and j)ay such expenses, (k) Under sect. 89 of the Local Board of Health Act, 11 & 12 Vict, c. 63, (/) a local board of health might be compelled by mandamus to make a rate for the purpose of satisfying a judgment within six months after the judgment liad been obtained against them, (m) And the remedy is not, generally speaking, available after the six months have expired, (n) But a rate may be ordered in aid of a judgment within six months after the judgment was obtained, although the action on which the judgment ^\as obtained was commenced more than six months after the claim accrued, if the delay is excused and shown not to have been undue, (o) Actions in •which a Claim for a Mandamus may be sustained. — Wherever, by charter or act of parliament, a duty is imposed upon a corporate body or chartered company, in the fulfilment of which the plaintiff is interested, and in respect of the non-ful- filment of which the plaintiff is entitled to maintain an action for damages, he may claim a mandamus for tlie fulfilment of the (0 Rea;. v. Branca.ster Churchwar- (m) Reg. v. Rotlierham, 8 Ell. & Bl. dens, 7 Ad. & E. 458. 906; 27 Law J. Q. B. 156. (',■) Res- ■!'. HuistboiirTie Tarrant, &e., (n) Burland v. Kingston-upon-Hull 27 Law J. M. 0. 214; Ell. Bl. & Ell. Local Board, 32 Law J. Q. B. 17; in 246; Reg. v. Tforfolk Commissioners of other cases, the plaintiff is not concluded Si-wers, 20 Law .1. Q. B. 121; Bogg v. by delay. Ward v. Lowndes, 17 C. B. Pearse, 10 0. B. 542; 20 Law J. C. P. 940; Ri-g. v. Churchwardens, &c., 27 99. Law J. M. C. 215; see Bush v. Martin, (/) This act is repealed; but there is 2 H. & C. 311. a similar provision in the Public Health (o) Worthington c. Hulton, L. R. 1 Act, 1875, 38 & 39 Vict. c. 55, sect. Q. B. 63 ; see Eingland v. Lowndes, 33 210. Law J. C. P. 25. 242 CHAP. I.] THE PARTIES. * 155 duty, (p) Thus where the plaintiff in an action for a manda- mus against a trading company set forth the incorporation of the company by letters patent, directing amongst other things that the capital of the company should be divided into shares, and provision made for the registration of the names of all the pro- prietors of such shares, and showed that a register of * shareholders had been established, iu conformity with [*155] the provisions of the charter, and that the plaintiff was entitled, as the executor of a deceased shareholder, to have his name inserted in such register, averring that he was personally interested, &c., and had sustained damage, and had made a de- mand on the company to have his name entered, and that they had refused, &c., it was held on demurrer that the plaintiff was entitled to the writ ; for wherever there is a duty in the fulfil- ment of which the plaintiff is personally interested, and which ought to be fuliiUed under royal charter, the non-performance being a grievance to an individual, that is a case for a manda- mus, {q) It is a case also, as we have seen, where a prerogative writ would be granted independently of the statute, (r) So where the plaintiff, having set forth that the defendants were a joint-stock company duly incorporated under the Joint- Stock Companies Act, and that the plaintiff was duly entered on the register of shareholders as a holder and proprietor of certain shares, numbered, &c., and that the defendants removed his name from the register, and refused, after demand, to restore it, &o., and claimed damages and a mandamus, it was held that the claim was properly made, (s) Where the plaintiff, in his declaration against the clerk of a local board of health, set forth that certain improvement commis- sioners, appointed under a local act, contracted to pay him a certain sum for certain services towards carrying into effect the purposes of the act; that the services were rendered, but the commissioners neglected to pay ; and that afterwards, by virtue {p) See Morgan v. Metrop. Ey. Co., Copeland v. N. E. Ey. Co., 6 EU. & Bl. L. R. 3 C. P. 553. 277. (q) Ld. Campbell, Norris d. Ir. Land (r) Norris v. Irish Land Co., supra; Co., 8 Ell. & Bl. 512; 27 L. J. Q. B. 116. Eex v. Merchant Taylors' Co., 2 B. & A company is not bound to register a Ad. 115. transfer not in accordance with the (s) Swan v. Brit. Austr. Co., 7 H. & statutable form. Eeg. v. Gen. Cem. Co., N. 604; 2 H. & C. 175; Ward v. South- 6 Ell. & Bl. 415; 25 L. J. Q. B. 342; East. Ey. Co., 29 Law J. Q. B. 177. 243 * 156 FOEMATION OF CONTRACTS. [BOOK I. of another act of parliament, the duties of the commissioners were transferred to the local board of health and it was enacted that all debts payable by the commissioners should be satisfied by the local board out of rates they were authorized to levy ; and the declaration went on to show that the debt remained unpaid ; that the plaintiff" was personally interested in the levying a rate for payment thereof ; that he had demanded and been refused payment and a rate, and sustained damage ; and he then claimed a mandamus; and the cause went to trial, and the damages were assessed, it was held that the plaintiff was entitled to the mandamus claimed. " The provi- sions of the Common Law Procedure Act," observes Hill, J., " now enable a plaintiff, in an action in which he might [ * 156 ] recover * judgment, but could not have execution, and would have had to apply for a mandamus, to combine a claim for a mandamus with his action, so that if he succeeds, a mandamus issues as part of the judgment. In such a case I think the amount of the debt for which the mandamus is ulti- mately to issue may be ascertained in the action." {t) Commissioners, or the members of a local board, appointed annually for executing the powers of a local act of parliament, are generally a fluctuating body in the nature of a corporation, represented by their clerk, who is the party to be sued for ser- vices rendered them for purposes within the scope of the act. (u) But for the statute, the commissioners who retain or order the services to be rendered by the plaintiff would be personally liable ; but as they are acting for public purposes under statutory authority, with power over a public fund created by the statute, they are generally expressly exempted from personal liability, and the burthen of satisfying and discharging the debts they in- cur in the execution of the purposes of the act is thrown upon the fund they are authorized to administer. An action to enforce payment of these debts must, as we have seen, be brought against them in the name of their clerk, and when judgment is obtained against the clerk, the public fund or the rates are to be resorted to for its satisfaction, and not the private property of the (t.) Ward V. Lowndes, 1 Ell. & Ell. (;() All.'ii v. Hayward, 7 Q. B. 793; 940; 28 Law J. Q. B. 265; 29 lb. 40. Bush v. Martin, 33 Law J. Exch. 17. 244 CHAP. I.J THE PARTIES. * 157 commissioners. («) If, therefore, after judgment has been re- covered against the clerk, a demand is made upon the commis- Eioners for satisfaction and discharge of the judgment-debt, and they neglect to provide themselves with funds or to make the payment, an action for damages may be brought upon the judg- ment, and the claim for a mandamus conjoined therewith, to compel the levying of a rate and the satisfaction and discharge of the judgment-debt. But in these cases the old prerogative writ of mandamus would seem to afford as convenient a remedy for enforcing satisfaction of the judgment-debt (y) as the bringing of a second action for a mandamus. If a second action is brought it must in many cases be commenced' within six months of the recovery of the judgment ; («) and it must appear that the judg- ment has been recovered against the clerk or secretary of the board in respect of some act of proceeding by the members of the board in the hona fide execution of the statutory powers en- trusted to them, so as to exempt them, and their clerk or secretary, from personal * liability ; {a) for if they [ * 157 ] have exceeded the powers conferred upon them, and are not protected from personal liability by the statute, they cannot charge the debts they incur, or the consequences of their unau- thorized proceedings, upon the rates, and a mandamus cannot issue to compel them to do what they have no power or authority to do. (5) Actions in which a Claim for a Mandamus cannot be sustained. — If in an action for a mandamus nothing more appears upon the record than that the action is brought for the recovery of a debt incurred by the members of some local board, commissioners, or corporate body, and there is nothing to exclude the personal lia- bility of the defendants, and to show that a public duty is sought to be enforced, or that the ordinary remedy by action would not be available, a claim for a mandamus cannot be sustained, (c) (a) Hall V. Taylor, Ell. Bl. & Ell. Southampton Local Boai-d, 8 Ell. & Bl. 107; 27 Law J. Q. B. 311; Kendal v. 801; 28 L. J. Q. B. 41. King, 17 C. B. 483. See Addison on (6) Duncan v. Findlater, 6 CI. & F. Torts {5tli ed., by Cave), pp. 671, 672. 908; Bush v. Beavan, 32 Law J. Exch. (3/) Ante,, pp.'* 1.52, *153. 68. (s) Burland v. Kingston, &o.. Local (c) Benson v. Paull, 6 E. & B. 273; Board, ante, p. * 54. Norris v. Irish Land Co., 8 E. & B. (rt) Southampton, &c. Bridge Co. v. 512; Bush i;. Beavan, s^i-pra. 245 * 158 FORMATION OF CONTRACTS. [BOOK I. Where the performance of the duty is impossible by reason of insufficient funds, the court will not issue a writ, (d) Declaration in an Action for a Mandamus. — When the man- damus is claimed for the satisfaction and discharge of a pecuni- ary demand, it must be shown, as we have seen, that it does not constitute a mere private debt, in respect of which the ordinaiy action of debt would be an available remedy, but that the only mode of obtaining payment is by recourse to a rate, the duty of making and levying which is, by statute or royal charter, imposed upon the defendants. The declaration need not state the precise amount due, as in the case of the prerogative writ of mandamus to enforce a judgment obtained against an officer of a corporation ; but the plaintiff is at liberty to allege the existence of the debt generally, leaving it to the jury to find the precise amount for which the mandamus claimed is to issue, and when that amount is found by them, the mandamus forms part of the judgment in the action, (e) [*158] SECTION III. ON THE AUTHENTICATION OF CONTRACTS. Of the Legal Authentication of Contracts.^ — lu most countries, and under most systems of jurisprudence, certain forms and 1 Besides the statutes of frauds, there are statutes and rules of court requirini' particular species of contracts to be in \VTiting : such as contracts on which a mechanic's lien is claimed; shipping-articles of seamen ; insurance policies; stipu- lations affecting progress of a suit, &c. Rules of this character are mentioned in treating the several contracts to which they respectively relate. Mention may here be made of principles applicable where contracting parties, independently of requirements of the statute of frauds, voluntarily reduce tlieir contracts to writing. The statute requires a memorandum in specifi<-d cases ; in others the parties are free to contract either in writing or by parol, as they may prefer ; but if they 60. Some of the passages in the judg- 18 Vict. c. 125; Wardi'. Lowndes, 1 Ell. ment in this case do not appear to be & Ell. 940; 28 Law J. Q. B. 265. leconcilable with the judgment of the ((/) Be the Bristol Ry. Co., 3 Q. B. Court of Queen's Bench, in narrowing D. 10. tlie operation of sects. 69, 70, and 71 of (,) Ward v. Lowndes, 1 Ell. & EU. the Common Law Procedure Act, 17 & 940; see C. L. P. Act, 1854 sect 69 246 CHAP. I.] AUTHENTICATION. * 158 solemnities have been establislied for the purpose of binding men finally and conclusively to the truth and good faith of their acts choose the former mode, the written evidence which they sign hecomes the best evidence of their intentions, is superior to contradiction by parol evidence, and is interpreted and enforced very much as are the agreements which the statute requires. The rules are chiefly treated under the heads of the various particular contracts, but there are some which are of general application. A contract cannot rest partly in parol and partly in writing ; nor can verbal conditions be annexed to a written contract. Black v. Bowman, 9 Ark. 501 ; Quartermous v. Kennedy, 29 Ark. 544 ; Waggeman v. Bracken, 52 111. 468 ; McClure v. Jeffrey, 8 Ind. 79 ; Woodall v. Greater, 51 Ind. 539 ; Van Ostrand v. Eeed, 1 "Wend. 424 ; Vandervoort v. Smith, 2 Cai. 155 ; Mumford v. McPherson, 1 Johns. 414. A writing resting partly in writing, partly in parol; is treated as an oral contract. Marion County v. Shipley, 77 Ind. 553. There seems to be some conflict of decision on the question whether, when parties have attempted to put their agreement in writing, but the writing is inoperative because incomplete or informal, — because not signed, stamped, de- livered, or for similar reasons affecting only the instrument, not the substance of the actual agreement, — the paper supersedes the oral negotiations, and precludes either party from proving a valid contract by parol, or is inoperative altogether, leaving either party at liberty to prove and recover on an oral agreement if a valid one was in fact made. For cases taking the first-mentioned view, see Davy ■V. Morgan, 56 Barb. 218 ; Dutch v. Mead, 36 N. Y. Superior Ct. 427 ; Newby v. Rodgers, 40 Ind. 9. For cases taking the second view, viz., that the attempt to reduce the agreement to writing does not nullify the oral engagement unless suffi- ciently completed to bind the pai-ties by the written one, see Blight v. Ashley, Pet, C. Ct. 15 ; Moulding v. Prussing, 70 111. 151 ; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Peck v. Miller, 39 Mich. 594 ; Shepard v. Haas, 14 Kan. 443; Court- enay v. Fuller, 65 Me. 166 ; Healy v. Young, 21 Minn. 389 ; Gage v. Jaqueth, 1 Lans. 207 ; Mildren v. Pennsylvania Steel Co., 90 Pa. St. 317 ; Euckman's Appeal, 61 Pa. St. 251 ; Syndics v. Woods, 5 La. Ann. 135 ; Fish v. Johnson, 16 La. Ann. 29 ; Montague v. Weil, 30 La. Ann. pt. 1, 50 ; Fredericks r. Fasnacht, ib. 117 ; Avandano i). Arthur, ib. 316 ; Villere v. Brognier, 3 Mart. (La.) 326 ; Waggeman V. Bracken, 52 111. 468 ; Bourne v. Shapleigh, 9 Mo. App. 64 ; Methudy v. Boss, 10 Mo. App. 101. As to sufficiency of a written agreement aside from statutory requirements ; as to certainty or ambiguity, description of subject-matter, mode of stating the engagements of parties, and other points connected with form and expression, — see Shepard v. Haas, 14 Kans. 443 ; Segars v. Segars, 71 Me. 530 ; Quincy Bank V. Hall, 101 U. S. 43 ; Quick v. Wheeler, 78 N. Y. 300 ; Smith v. Weaver, 90 111. 392 ; Weiden v. Woodruff, 38 Mich. 130 ; Jackson School Township v. Farlow, 75 Ind. 118. Sufficiency of statements of terms in an exchange of tele- grams, to constitute a valid contract, see Deshon v. Fosdick, 1 Woods, 286 ; Wells V. Milwaiikee, &c. Ey. Co., 30 Wis. 605; Duble v. Batts, 38 Tex. 312; Schonberg v. Cheney, 6 Thomp. & C. 200, 3 Hun, 677. Except when required by some positive law, the consideration for a contract nRed not appear upon its face, but may be proved by parol or inferred from the terras and obvious import of the agreement. Atti-t v. Pelan, 5 Iowa, 336 ; Tingley v. Cutler, 7 Conn. 291 ; Monton v. Noble, 1 La. Ann. 192 ; Cummiugs v. Dennett, 26 Me. 397 ; Patchin V. Swift, 21 Vt. 292 ; Thompson v. Blanchard, 3 N. Y. 335; Bartlett «. Matson, 1 Mo. App. 151. If not expressed in the writing, a consideration may be 247 *158 FORMATION OF CONTRACTS. [BOOK I. and representations, and for the due authentication of contracts. The highest and most authentic contract known to the civil law proved aliunde. Arms v. Ashley, 4 Pick. 71. But if one is expressed in the writing, no other can be ]]roved (Scliermerhorn r. Vanderheyden, 1 Johns. 139; Veacock v. M'Call, Gilp. 329 ; Emery v. Chase, 5 Me. 232), unless the words "for other considerations " are used (JIaigley i). Hauer, 7 Johns. 341; Cutter i). Reynolds, 8 B. Mon. 696). Duplicates, &e., Totteu v. Buoy, 57 Md. 446. Necessity and sufficiency of the signatures of the parties : see Staples v. Wheeler, 38 Mich. 372 ; Esmay v. Gorton, 18 111. 483 ; Fish v. Levine, 16 La. Ann. 29 ; Marshall v. Hann, 17 N. J. L. 425; Dutch v. Mead, 36 N. Y. Superior Ct. 427; Van Nostraud v. New York Guaranty, &c. Co., 39 N. Y. Superior Ct. 73 ; Steininger u. Hoch, 39 Pa. St. 263 ; Grove v. Hodges, 55 ib. 504; State v. Jones, 1 McMull, 236; Stearns v. Haven, 16 Vt. 87 ; Paige v. FuUerton Woollen Co., 27 Vt. 485 ; Brandon Manuf. Co. v. Morse, 48 Vt. 322. When and how a contract in writing may be executed by mark instead of by signing the name, see Selden v. Myers, 20 How. 506 ; Tranibly v. Eicard, 130 Mass. 259 ; Mutual Benefit Life Ins. Co. V. Brown, 30 N. J. L. 193 ; Zimmerman v. Sale, 3 Piich. 76. The neces.sily, sufficiency, and effect of delivery and acceptance of written agi-eements, see Blan- chard v. Blackstone, 102 Mass. 343 ; Newby u. Rodgers, 40 Ind. 9. Simple written contracts may be delivered subject to conditions ; and in case of such a delivery, performance of the condition is essential to the validity of the instrument. The annexing of the condition to the delivery is not an oral contradiction of the written obligation, but as there needs to be a delivery in order that the instrument should become operative at all, the effect of the delivery and the extent of the instrument's operation may be limited by imposing the condition. Benton v. Martin, 52 N. Y. 670. Rules of presumption and burden of proof applying to simple written contracts generally independent of the statute of frauds are, that unless a contract sued upon appears to have been in writing, it will be regarded as unwritten (Lamb v. Donovan, 19 Ind. 40); that the execution of a contract is primn facie evidence of authority to contract (Shelbyville ti. Shelbyville, 1 Jlet. (Ky.) 54), though where the names of parties to a contract have been signed by a person representing him- .self to another party as their agent, and the parties whose names have been thus signed especially deny the authority in a suit to enforce it, the burden of showing authority in the agent to sign the names of the principals, or a subsequent ratifica- tion by them, falls on the party who seeks to enforce the contract (McCarty v. Straus, 21 La. Ann. 592); that it is for the plaintiff to establish an alleged agree- ment where the defendant denies that any was made (Burton v. Mason, 2G Iowa, 392) ; or to show that it was absolute if the evidence raises a rjuestion whether it was not conditional (Hebbard v. Haughian, 70 N. Y. 54); that in construing the terms of a contract the presumption is in favor of the comprehen.sive over the restricted, and the common over the unusual, sense of the words (2 Pars. Contr. 500 ; Met- calf D. Taylor, 36 Me. 28); that the desti-uction of a contract creates a presump- tion against the party destroying it (Warren v. Crew, 22 Iowa, 316 ; Jones v. Knauss, 31 N. J. Erp 609) ; but not one overriding affirmative proof of its contents (Bott V. Wood, 56 Miss. 136) ; that the parties to a simple contract intend to bind not only themselves, but their personal representatives (2 Pars. Contr. 533); that where the instrument is not of itself necessarily illegal and void, it will be pre- sumed to be valid (Brown v. Brown, 34 Barb. 533); the burden of showing it invalid rests on him who impeaches it (Alabama, &c. Life Ins. Co. v. Central Agricultural, &c. Assoc, 54 Ala. 73); and so of the burden of proving that it was 248 CHAP. I.J AUTHENTICATION. * 158 was called a stipulation ; it was entered into before a magistrate or public officer, through the medium of interrogatories and answers calculated to explain the nature and extent of the undertaking, to put the parties entering into it on their guard, and to show it to be their mature and deliberate act. (a) A made under mistake of fact (Dodd v. Gloucester Ins. Co., 127 Mass. 151); or that by mistake it was not made to e.Npress all the terms of the actual agreement (Robbins v. Magee, 76 Ind. 381). In an action on an affirmative conti'act, as to pay money or perform some duty, if the plaintiff proves the contract, he is not bound to give evidence of non-performance; it is then incumbent on the defendant to prove payment or performance, or its equivalent (McGregory v. Prescott, 5 Gush. 67). And where the terms of a contract call for work to be performed, a presumption is indulged in favor of faithful performance (Eoberts v. Brownrigg, 9 Ala. 106); and that compensation was intended (Doggett v. Ream, 5 111. App. 174). And where A contracted to locate land and procure a patent, and proved that he caused a patent to be issued, and paid the dues and fees, it was held that the jury might pi'esume he procured the location and survey to be made. Emmons v. Oldham, 12 Tex. 18. Where anything is to be done, as goods to be delivered, and no time is specified, the presumption is that performance within a reasonable time was intended (Sawyer v. Hainatt, 15 Me. 40 ; Howe v. Huntington, ib. 350 ; Atkin- son V. Brown, 20 Me. 67); and that if an agreement is silent as to the placa of performance, that performance where it was made was intended (De Sobry v. De Laistre, 2 Har. & J. 191); that in a contract for the sale of goods, the delivery and payment are to be concurrent acts (Tipton v. Feitner, 20 N. Y. 423); that where an obligation is undertaken by two or more, or a right given to two or more, it is a just obligation or right (1 Pars. Contr. 11 ; Yorks v. Peck, 14 Barb. 644); that the evident alteration of any instrument was made after its execution (2 Pars. Contr. 721). A conti'act, good according to the law either of the place of contract or of performance, will be presumed to have been made in view of the law of that place where it would be good, and is therefore valid. Brown v. Free- land, 34 Miss. 181. There is no presumption in aid of a written contract which appears to have been executed on Sunday that the parties were observers of Satur- day as their. Sabbath, and therefore at liberty to contract on Sunday (Sayre v. Wheeler, 31 Iowa, 112); where a contract, valid on its face, is sought to be im- peached, as in contravention of the stock -jobbing At, the onus probandi is on the impeaching party (Dykers v. Townsend, 24 o^. Y. 57). The law will not presume a promise to pay for board or services as among members of the same family and persons more or less intimately or remotely related, where they are living together as one household (Wilcox v. Wilcox, 48 Barb. 327 ; King v. Kelly, 28 Ind. 89); nor is a person entering into a contract bound by the usage of a particular busi- ness, unless it is so general as to furnish a presumption of knowledge (Stevens v. Reeves, 9 Pick. 197). (a) "Nimirum leges Romanse ex certo modo et forma concipienda cele- nuda conventione neminem obligari vol- brandaque, quam deliberati animi cer- uerunt, ne qualecumque promissum, et turn signum esse volaerunt, et ex qua sermo, siepe inconsultus magis quam certo jure actio competeret, quam con- ex voluntate proficiscens, necessitate ventionem stipulationem dixerunt." juris promittentem illigaret, et litium — Vinnius, lib. 3, tit. 16, p. 677 ; quoque, ut opinor, praecidendarum " Stipulationis introducendse ratio causa ; sed excogitata est conventio hsec una fuit, ut discerni posset, an 249 * 159 FOEMATION OF CONTRACTS. [BOOK I. solemn contract of this nature could not afterwards be im- peached, except on the ground of fraud or deceit, and could not by the civil law be released or discharged whilst executory, ex- cept by an equally solemn proceeding, conducted by question and answer before the magistrate or public functionary, called an ACCEPTILATION, (&) The civil law did not consider the [ * 159 ] circumstance of the contract or undertaking being * put into writing equivalent to the verha solcnnia or stipu- lation. The written promise, or acknowledgment, or note, amounted only to evidence of the fact or transaction, and might be avoided and rendered nugatory by extrinsic testimony ; but if the acknowledgment was made in the prescribed form before the public functionaries, it was at once conclusive, and no ex- ception could afterwards be brought against it. By the inter- vention of a stipulation, the written contract at once ceased, the lesser security being merged in the greater, (c) The Continental nations, acting by analogy to the civil law, recognize in general two classes of contracts of a superior and inferior nature, the one being public authentic acts ratified and confi.rmed before wit- nesses, or in the presence of a magistrate, or a notary public, or a registrar or judge ; the others, private acts, which are entered into and arranged between the parties themselves, without wit- nesses, and without the ministry or authentication of any public officer. The publicly authenticated contract carries with it full credit ; but the private act may be questioned and contradicted, and requires some cause or consideration for its compulsory fulfibnent. (d) Contracts requiring Authentication by a Signed "Writing.' — ' The English statute of frauds, 29 Car. II. c. 3, may be found transcribed in Browne, Stat. Ft., Apji. 581, or Throop, Verb. Agr. 21; followed by some later English enactments of analogous character. The American statutes as they existed at about 1870 are given in Throop, Verb. Agr. 36-6.'J; the same as exist- ing at about 1880 are given in Browne, Stat. Fr. (4th ed. 1880) 585, 633. The promissio temere effusa an vero consulto (c) Vinnius, pp. 735, 736, 738; Perez, conrepta esset." — Perezii prselect. 2, prselect. lib. 4, tit. 30 ; Cod. lib. 14, tit. p. 71. 30, sect. 14, ed. Gothofred, p. 238. (h) Vin. p. 677 ; Dig. lib. 45, tit. 1 ; (d) " L'obHgation sans cause ne peut Cod. lib. 8, tit. 38, 44 ; Dig. lib. 46, tit. avoir aucun effet." — Code Civile, liv. 3, 4 ; Inst. lib. 3, tit. 30 ; Pandect, lib. 50, tit. 3, sect. 4. tit. 17, art. 5, par Pothier, vol. 5, p. 254. 250 CHAP. I.] AUTHENTICATION. * 159 Contracts for the Sale of Interests in Land.^ — By the 29 Car. II. c. 3, sect. 4, no action shall be brought whereby to charge any treatises of Browne and Throop each aim at a comprehensive treatment of the operation of the statutes, giving primarily the American law, together with men- tion of whatever English decisions are deemed useful in this country. But while Mr. Browne's treatise is completed according to this plan (it reached the 4th edition in 1880), one volume only of the two which Mr. Throop contemplated has been published. It embraces the requirements and effect of the statute upon special promises of executors and administrators, &c. ; special promises to answer for the debt, default, or miscarriage of another person; and agreements made upon consideration of a marriage, — other heads being postponed to the proposed second volume. For other general accounts, see 3 Pars. Contr. (6th ed. 1873) 3-60; 2 Story, Contr. (5th ed. 1874) 627. A series of articles by H. Reed, entitled Studies in the Law of the Statute of Frauds, 13 Am. L. Reg. k. s. 593; ib. 721; 15 Am. L. Reg. N. s. 321, give a useful general view, specially discussing the Pennsylvania statute, and announcing a volume of leading cases on the statute, by the same author, 16 Am. L. Reg. N. s. 577. For the decisions on the application of the respective provisions of the various American statutes to contracts generally, see TJ. S. Dig. tit. Contracts, sect. 560 ; what contracts are within the statute, sect. 575 ; what is a sufficient memorandum or signing, sects. 607-666; what is not, sects. 666-696; contracts not to be per- formed within a year, sects. 697-746; what contracts are excepted on the ground of l^erformance, sect. 747; or of part performance, sects. 761-783. Application of the statutes to conveyances in fraud of creditors, see ib. tit. Fraudulent Convey- ances, sect. 220 ; to engagements to answer for the debt of another, ib. tit. Guaranty, sect. 50; to leases, ib. tit. Landlord and Tenant, sect. 658; to marriage settle- ments, ib. tit. Susband and Wife, sect. 330; to sales of chattels, ib. tit. Sales, sects. 80, 99; of land, ib. tit. Specific Performance, sects. 409, 437, 449; ib. tit. Vendor and Purchaser, sect. 136; to sales by auction, ib. tit. Auction, sect. 36; or upon execution, ib. tit. Execution, sect. 1619. Noteworthy discussions of the effect of any single portion of the statute are mentioned under the appropriate caption in the text, pp. * 159-* 180. Recent cases on the general operation of the statute are : The statute of frauds does not forbid setting up an oral agreement for an interest in lands as a defence. 2 On the formalities for conveying estates in land, see Browne, Stat. Fr. (4th ed. 1880) c. 1; leases covered by the statute, ib. c. 2; leases excepted from the statute, ib. c. 3; assignment and surrender, ib. c. 4; conveyances by operation of law, &c., ib. c. 5; trusts implied bylaw, ib. c. 6; express trusts, ib. c. 7; contracts for land, ib. c. 12; verbal contracts enforced in equity, ib. c. 19. See further, 3 Pars. Contr. (6th ed. 1873) 31-35; 2 Story, Contr. (5th ed. 1874) sects. 1439- 1441; 2 Washb. R. P. (4th ed. 1876) 49, 84, 501; 3 Washb. R. P. (4th ed. 1876) 234, 340. What parol leases are valid, see TJ. S. Dig. tit. Landlord and Tenant, sect. 658; what are not, ib. sect. 678; execution and delivery of written leases, ib. sect. 692; their form and sufficiency generally, ib. sect. 715; and see further, Taylor, Land, and Ten., sects. 28-32; 1 Washb. R. P. (4th ed. 1876) 614. Validity of sales by parol, under the statute of frauds, see XT. S. Dig. tit. Vendor and Purchaser, sect. 136; what estates or interests in land are within the statute, sect. 166; what are not, sect. 206; what agreements respecting lands are within the statute, sect. 24; what are not, sect. 299; contracts (for lauds) not to be performed 251 *159 FORMATION OF CONTRACTS. [BOOK I. person upon an}"^ contract or sale of lands, tenements, or here- ditaments, or any interest in or concerning them, unless the Tlius a plea to a promissory note, that the maker paid it by delivering possession of lands, which payee accepted in full satisfaction, is not bad. Thayer t). McEwen, 4 111. App. 416. One who has surrendered a contract entitling him to buy land.s, in order that they may be conveyed to another purchaser, is not prevented by the statute of frauds from suing for the consideration orally promised him for making the surrender. Sullivan v. Dunham, 42 llich. 518. Strangers to a contract cannot impeach it by setting up the statute of frauds. Lavender v. Hall, 60 Ala. 214; Rickards v. Cunningham, 10 Neb. 417. A third person cannot set up the statute to defeat a parol agreement to rescind a deed ; only the party to be charged by the contract can object. Davis v. Inscoe, 84 N. C 396. When the parties to contracts within the statute of frauds and the statutes concerning trusts and powers have voluntarily and fully executed their agi'ee- ments, so far as real estate or any interest or trust therein is affected, there is no reason why the statutes should be interposed against the further enforcement of the contracts according to their terms. Tinkler v. Swaynie, 71 Ind. 562. The doctrine of part performance taking a contract out of the statute is a creature of equity, and is applied only for protecting titles to lands. It does not sustain an action brought to recover money on an oral conti'act which, by the statute, should have been in writing. McElroy v. Ludlura, 32 N. J. Eq. S28. In order to the enforcement of a contract within the statute of frauds on the ground of part performance, a certain and definite parol agreement must be proved, and the acts relied upon in proof of part performance must refer to, result from, or be made in pursuance of, the agreement; which must have been so far executed that a refusal to fully execute it would operate as a fraud upon the other party, and place him in a position for which no compensation could be had at law. Brown V. Brown, 33 N. J. Eq. 050. within a year, sect. 356; form and sufficiency of the memorandum, sect. 362; how and by whom the memorandum must be executed, sect. 382; effect of perfoi-mance in whole or in part, sect. 395; effect of payment of purchase-money, sect. 407; of taking and continuing possession, making improvements, &c., sect. 415. Recent cases are; An oral agreement to return leased premises in the same con- dition as when they were hired, is good. Halbut v. Forrest City, 34 Ark. 246. An oral lease or agreement for a lease for a j-ear to comraeni'e from a future day, is valid within the statutes of Colorado (Sears v. Smith, 3 Col. T. 287), and Iowa (Jones V. Marcy, 49 Iowa, 188), but must be in writing in Kansas, (Wolf t). Doyer, 22 Kan. 436). A letting for a term of five years was held invalid, notwithstanding tenant had been put in possession under it, and had occupied and paid rent for two years. Creighton v. Sanders, 89 111. 543. A simple permission to occupy land, rent free, may operate as a valid license without being in writing. Bailey v. Ward, 32 La. Ann. 839. As to an agreement for a renewal of a lease at a rental to be a percentage on value of the land as fixed by appraisers, see Norton v. Gale, 95 111. 533. An agreement to convey land need not be in writing in order to be enforced after the conveyance has been made. Tuthill v. Roberts, 22 Hun, 304; Reyman v. Mosher, 71 Ind. 596. The fact that a lease is for a longer term than three vears does not prevent a 252 CHAP. I.] AUTHENTICATION. * 159 agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by rescission thereof by a parol agreement of the parties, when accompanied by a sur- render of the lease and possession by the tenant to the landlord, and acceptance by the latter. It is not like a sale and transfer to a stranger of an interest in land greater than a terra of three years, and is not, therefore, within the statute of frauds. Auer v. Penn, 92 Pa. St. 444. A parol agreement for sale of a growing tree passes no title, for the tree is part of the land ; the agreement has only the force of a license to enter and cut. Arm- strong V. Lawson, 73 Ind. 498. An oral sale of land was accompanied by a stipulation, also oral, that the grow- ing crop should pass with the law. Seld, that although an independent sale of growing crops might be sustainable, though not in writing, an agreement merely collateral, to avoid sale of the land, could not be. Jackson v. Evans, 44 Mich. 510. Whether an agreement for farming land on shares must be in writing, decided, in cases involving part performance. Treadway v. Smith, 56 Ala. 345; Wiley v. Bradley, 60 Ind. 62. Whether an agreement between a parent and a child that if the child will sup- port the parent, the parent will convey land to the child, is within the statute, see Mauck v. Melton, 64 Ind. 414 ; Johns v. Johns, 67 Ind. 440; McCormick v. Drummett, 9 Neb. 384. A parol purchase of the share of one tenant in common in land cannot be made valid by payment, or by taking possession under deeds conveying the shares of the other tenants and improving the land. Nay v. Mograin, 24 Kan. 75. A parol agreement to constnict a ditch and keep it in repair for the mutual benefit of several parties will be enforced in equity if, in pursuance thereof, they have performed labor, and paid their share of the expenses. Goch v. Sullivan, 1 3 Nev. 78. A devise of rents from the testator's real estate which the executors were directed to sell, is an interest in lands within the statute. Brown v. Brown, 33 N. J. Eq. 650. The statute does not require that a judgment constituting a lien on land should be assigned by a written instrument. Winberry v. Koonce, 83 N. C. 351. The statute does not prevent a parol declaration of trust in lands, and such trust may be defeated or rebutted by parol. Wiser v. Allen, 92 Pa. St. 317. The following parol agreements for various interests in lands have been sus- tained notwith.standing the objection that they ought, by the statute of frauds, to have been in writing. A promise to pay a bonus or premium for being substituted in promisee's place as purchaser in a contract for sale of land,' where promisor had received conveyance of the lands as agreed. McCarthy v. Pope, 52 Cal. 561. An agreement to pay an agent for services in negotiating a sale of land. Watson v. Biightwell, 60 Ga. 212. A grantee's agreement to pay to grantor a sum additional to the price paid on conveying if grantor should, within a specified term, find a purchaser for the land at an advance. Eeyman v. Mosher, 71 Ind. 596. A con- tract by which one was to make brick on the land of another, the latter to be owner of the brick until paid for his materials. Brown v. Morris, 83 N". C. 251. An agreement between two persons interested in a railroad and desiring to bid at a foreclosure sale, that one should not bid, that the other .should bid for benefit of both, and that a new company should be organized in which both should share. Cornell v. Utica, &c. E. R. Co., 61 How. Pr. 184. An agreement for exchange of land where one party gave his cheque for difference in value, and 253 * 159 FORMATION OF CONTRACTS. [BOOK I. the party to be charged therewith, or some other person there- unto (e) by him lawfully authorized. This refers to agreements the receipt given specified the lands and prices, but omitted to mention the tenns to run of certain mortgages. Eaubitsche v. Blank, 80 N. Y. 478. A husband's promise to convey land to his wife, in consideration of her relinquishing her inchoate dower in other lands of his. Brown v. Rawlings, 72 Ind. 505. An agreement by a husband and wife for value received, to relinquish real property (not a homestead). Hotchkiss v. Cox, 47 Iowa, 655. A promise by a school board occupying a lot, to the land owner, that on his paying them a certain sum they would surrender the lot and build elsewhere. Wilkins School Dist. v. Milli- gan, 88 Pa. St. 96. A conveyance obtained from the State by an attorney for the avowed purpose of protecting a client's interest in the land against tax titles ; and therefore subject to a resulting trust. Cameron v. Lewis, 56 Miss. 76. A promise of a municipal corporation to compensate a lot owner for injury to his lands by a street opening illegally conducted. Coleman v. Chester, 14 S. C. 286. The following agreements for various interests in lands have been held insuffi- cient under the statute for want of a proper memorandum. An agreement whereby one party was to expend money in purchasing an interest in land for the other. ■Wetmore v. Newberger, 44 Mich. 362. An agreement between two brothers to unite their funds, buy land, and build a double house, each to take one part. Ovemieyer v. Koerner, 81 Pa. St. 517. A promise to give a note for the price of land to be conveyed to a third person, although the conveyance had been made as agreed. Liddle v. Needham, 39 Mich. 147. An agreement to pay for work by giving a conveyance of land. Sutton v. Rowley, 44 Mich. 112. An agreement that labor of A in fanning land of B should entitle A after a certain time to an equal share in the land. Neal v. Neal, 69 Ind. 419. A promise to convey land in payment for a monument to be constructed by the promisee for the promisor, where the promisor had refused the monument and had not benefited by the promisee's labor in making it. Dowling v. McKennedy, 124 Mass. 478. A hus- band's promise to complete execution of a deed which his wife, in his absence, but with his consent, had made and delivered, leaving a blank for his signature, al- though grantee had been put in possession. Curtis v. Abbe, 39 Mich. 441. A promise by a purchaser of lands at a foreclosure sale that when he has been reim- bursed for his expenditure he will recouvey to the mortgagor. Howdand r. Blake, 97 U. S. 624. Agreements with a debtor to buy his land offered for sale on fore- closure or on execution and to convey it to him. Carlisle v. Brennan, 67 Ind. 12; Harrison v. Nailey, 14 S. C. 334; see also Pucker v. Steehnan, 73 Ind. 396. An engagement to procure from a third person a conveyance of an equity of redemp- tion owned by him. Rawdon v. Dodge, 40 Mich. 697. A promise by the holder of a mortgage on lands to release a portion on receiving a proportional payment of the debt. Merrill v. Pease, 51 Vt. 556. A memorandum of a sale of lands (in Kcw Hampshire) must contain enough to identify parties, land, and price, without resort to parol evidence. Grafton v. Cummings, 99 U. S. 100; . 880) c. 17; the contents of the memorandum, ib. e. ]8; see further, 3 Pars. Contr. (6th ed. 187-3) 4-19; 2 Story, Contr. f.5th ed. 1.^74) sects. 1447-145.5. AVhat is a suiiicient memorandum, V , .S, Dig. tit. Confrar/^, sects. 607-665 ; what is not, sects. 666-696. Williams v. P.nbinson, 73 Me. 186. Eecent oases are: A landowner's letter to his a^ent or broker, stating terms on which he will sell, is not available to a purchaser as a memorandum of the agree- ment of sale formed by his dealing orally with the agent. Steel v. Fife, 48 Iowa, 99; Albertson v. Ashton, lui 111. 50. Memorandum held insufficient because it contained besides date, &c. and signature, only iigures and names of persons, but no intelligible terms of agreement. Rcid t). Kenworthy, 25 Kan. 701. The requirements of a memorandum in writing, a signature, &r. are satisfied by send- ing an ordinary telegra[jliic despatch. Smith v. Easton, 54 i\ld. 13b; s. P. Brink- man V. Hunter, 73 Mo. 172. (it) Donellan v. Eead, 3 B. & Ad. panj', 32 L. J. Q, B. 241; AVarner v. 906; Cherry v. Hcuiing, 4 E.xch. 631 ; Willington, 3 Drew. 52;_1 ; Liverpool Mavor v. Fync, 11 Moore, 2. Borough Bank v. Eccles, 4 H. & X. 143; (,.) Smith V. Neale, 2 C. B. N. s. 67; 2S L. J. Ex. 122; Bird v. Blo.sse, 2 Veutr. 26 L. .1. C. P. 143; Eeuss u. Pieksley, 361; Ld. St. Leonards, Ridgway v. L. l;. 1 Ex. 342; 35 L. J. Ex. 218; Peek Wharton, 6 H. L. C. 293. «. The North Staffordshire Railway Com- (i/) Peek u. The North Stalfordshir« 274 CHAP. I.] AUTHENTICATION. * 1 73 required to connect them, (s) And indeed any printed papers or communications in writing which may have passed between the parties, forming on the face of them part of one connected trans- action, may be incorporated and construed together, and made to establish the requisite written evidence of an " agreement." («) But the names of the parties and the terms of the contract must appear from a comparison of the writings themselves; and they must manifestly refer to the same contract and transaction, and must not be contradictory to each other. (&) It has also been held that parol evidence might be admitted to identify an unsigned agreement as being the one referred to in a signed minute in a * minute-book, (c) or a receipt by [*173] the defendant for a deposit as being given in respect of the same subject-matter as an agreement signed only by the plaintiff ; {d) or a reference in a signed letter by the defendant to a memorandum signed by the plaintiff, (e) If two parties have entered into an agreement for the per- formance of particular acts or duties, it is not necessary to show that the memorandum of the agree^nent has been signed by both parties, in order to render the one who has signed it liable upon the contract. Thus, if an agreement has been made by word of mouth for the purchase and sale of an estate, and the purchaser signs a memorandum by which he agrees to buy the property for a certain sum from the vendor, and the vendor is ready to es- tablish his title, and is willing and offers to convey the property to the purchaser, the latter cannot escape from his agreement to buy by saying that the vendor had signed no memorandum of the contract, and was not himself liable upon it by reason of the Railway Company, 32 L. J. Q. B. 241 ; 948; Cooper v. Smith, 15 East, 103; Ridgway v. Wharton, 6 H. L. C. 238; Jackson v. Lowe, 1 Bing. 9; Smith v. 27 L. J. Ch. 46. Surman, 9 B. & C. 661; Williams r. (z) See Chapman v. Callis, 9 C. B. Lake, 2 Ell. & Ell. 349; 29 L. J. Q. N. s. 769; 30 L. J. C. P. 241; Peek v. B. 1. North Staffordshire Railway Company, (c) Jones v. Victoria Graving-Dock 32 L. J. Q. B. 241. Co., 2 Q. B. D. 314. (a) Bird v. Blosse, 2 Ventr. 361; (d) Long v. Millar, 4 C. P. D. 450, Dobell V. Hutchinson, 3 Ad. & E. 355; C. A.; see also Shardlowi). Cotterell, 20 Coei). Duffield, 7 Jtoore, 252; Stead v. Ch. D. 90. Liddard, 8 ib. 2; Baumann v. James, (e) Cave v. Hastings, 7 Q. B. D. L, R. 3 Ch. 508. 125. (6) Kenworthy v. Sohofield, 2 B. & C. 275 * 174 FORMATION OF CONTRACTS. [BOOK I. statute. (/) So if a purchaser sends an order in writing signed by him for goods, which are selected and forwarded to him, and he then declines to receive them, it is no answer to an action for not accepting and paying for the goods, to say that there was no memorandum of the contract signed by the vendor, {g) But, although it is not necessary that both parties should sign the memorandum, both parties must be specified either nominally or by a sufficient description or reference, (A) unless the plaintiff has estopped himself from repudiating the contract, (i) Thus, in the case of a bargain and sale of goods and chattels, it must appear, from the memorandum signed by the purchaser, that the plaintiff is the vendor; for if that is left wholly uncertain, the memoran- dum will be insufficient. Qc) And where a price is agreed upon at the time of the sale, it must be set forth on the face of the memorandum, (l) So also before the court will decree specific performance of a contract for sale of real property, it [*174] must be * sufficiently described in the receipt or memo- randum, (m) Again, if the contract is a contract for the performance by the parties of mutual recurring acts and services from time to time, both must be bound by the contract, or neither can be made liable upon it, (n) except in respect of acts done and services actually rendered. Thus if a servant signs a memo- randum of agreement by which he undertakes to serve his em- ployer for more than a year, and enters upon the service, he is (/) Hatton V. Gray, 2 Ch. C. 164; v. Spooner, L. R. 1 Ex. 316; 35 L. J. Fowle ii. Freeman, 9 Ves. 351; Setou 1). Ex. 201; Potter v. Dufiicld, L. E. Slade, 7 Ves. 264; Laytlioarp ■!;. Bryant, 18 Eq. 4. But parol evidence may be 2 Biug. N. C. 735; 3 Scott, 238. givenof the relative trades of the parties; (g) Egerton v. Mathews, 6 East, 307; and if from that it can be inferred with Liverpool Borough Bank v. Eccles, 4 H. reasonabh' certainty which was the seller & N. 143 ; 24 L. J. E.X. 122; Allen u. and whirh the buyer, that will be sufB- Bennet, 3 Taunt. 169. cient. Newell v. Kadford, L. E. 3 C. P. Qi) Williams v. Lake, 2 Ell. & Ell. 52; 37 L. J. C, P. 1. 349; 20 L. J. Q. B. 1; Sale f. Lambert, (0 Goodman V Griffiths, 1 H. & N. L. R. 18 Eq. 1; Commins ^. Scott, L. 576. As to the requisites of the memo- R. 20 Eq. 11 ; Catlin v. King, 5 Ch. D. randum of a contract of sale, see further, 660; Williams v. Jordain, 6 Ch. D. post,*Q\Z. 517. (m) Shardlowi). C'otterell, 18 Ch. D. (i) Thomas «. Brown, IQ. B.D. 714. 280; 20 Ch. D. 90, C. A. (Ic) Champion v. Plummer, 1 N. R. (n) Hoddesdon Gas Company v. 252; Giaham v. Musson, 5 Bing. N. C. Haselwood, 6 C. B. N. s. 249; 28 L. J. 603; Sari v. Bourdillon, 1 C. B. N. ,s. C. P. 268. 195; 26 L. J. C. P. 78; Vandenburgh 276 CHAP. I.] AUTHENTICATION. * 175 nevertheless not bound by his agreement to serve for a year, unless the memorandum is also signed by the employer ; for if the latter is not bound to employ for the term specified, the ser- vant is not bound to serve, (o) But in all other respects, as regards work actually done and services rendered, the servant would be bound by the terms of his signed writing, {p) In the case of a written memorandum of an agreement for a lease, if the memorandum construed in connection with other writings therein referred to and with surrounding circumstances leaves the commencement or the duration of the term wholly un- certain, there is no binding contract. (^ If a party writes a letter admitting the essential particulars of the contract, but containing a repudiation of the bargain upon bad or insufficient grounds, the letter will constitute a good memorandum of the contract within the statute, (r) The agreement must be completed before the letter can be evidence of a binding contract, (s) It was formerly held that the note or memorandum of a promise to answer for the debt, default, or miscarriage of another must disclose upon the face of it the consideration for the promise; {t) but by the 19 & 20 Vict. c. 97, sect. 3, " no such promise, being in writing and signed by the party to be charged therewitli, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not ap- pear in writing or by necessary inference from a written docu- ment." The consideration, therefore, may be supplied by oral evidence, but not the nature and extent of the promise itself (m) * In the case of a guarantee the name of the [ * 175 ] party to whom it is given must be stated on the face of (o) Sykes v. Dixon, 9 Ad. & E. 693. {r) Bailey v. Sweeting, 9 C. B. N. s. (f) Collisv. Botthamley, 1W. E.87; 843; 30 L. J. C. P. 154; Wilkinson v. Souch «. Strawbridge, 2 C. B. 808; L. J. Evans, L. K. 1 C. P. 407; 35 L. J. C. P. C. P. 172. 224; Buxton v. Eust, L. R. 7 Ex. 279; (q) Bayley v. Fitzmaurice, 8 Ell. & 41 L. J. Ex. 173. Bl. 679; Fitzmaurice v. Bayley, 27 L. .J. (s) Munday ■!). Asprey, 13 Ch. D. 855. Q. B. 143; Clarke u. Fuller, 16 C. B. (t) Powers v. Fowler, 4 Ell. & Bl. N. s. 24; Nesbam v. Selby, L. R. 13 511. Eq. 191; 41 L. J. Ch. 551; see, how- (u) Holmes v. Mitchell, 7 C. B. N. s. ever, Kusel v. Watson, 11 Ch. D. 129. 361; 28 L. J. C. P. 301. 277 * 175 FOKMATION OF CONTEACTS. [BOOK I. the memorandum ; for parol evidence is inadmissible to supply the omission, {x) But if the writing is not strictly a guarantee — if it is a general order or authority to any person who may choose to act upon it;, authorizing the supply of goods to a third party, and promising to pay for the goods so supplied — it may be sued upon as an original contract, (i/) A written admission by a purchaser to his agent that he had bought certain goods for him is a sufficient note or memorandum of the bargain between o him and the vendor. («) Of the Signature to the Memorandum.^ — If a man writes his name in the first person, as " I, James Crockford, agree," &c., (a) or in the third person, as " Mr. Stanley agrees," (b) this is a sufficient signature. But the mere insertion of the name of the contracting party in the body of a written contract is not of itself a sufficient signature. For though the signature need not be placed in any particular part of the instrument, yet it must be so introduced as to govern or authenticate every material and operative part of it. (c) Therefore, where the defendant Moore wrote instructions for a lease to the plaintiff in these words : "The lease renewed; Mrs. Stokes to pay the king's tax, also to pay jMoore £24 a-j^ear half yearly ; j\Irs. Stokes to keep the house in good and tenantable repair," &c., it was held that Moore, by writing his own name in the body of the instructions, had not signed an agreement for the renewal of the lease within the intent and meaning of the statute, (d) If the agreement con- cludes " as witness our hands,'' or contains anv words showino- that the names of the contracting parties were to be subscribed, ^ See V. S. Dig. tit. Contracts, sects. On7-fi9G. That signing by the party to he cliarged, only, is sufficient, see Douglass v. Spears, 2 Kott & M. 207, 10 Am. Dec. 588; Russell v. NicoU, 3 Wend. 112, 20 Am. Dec. 670; McCrea v. Purmort, 16 Wend. 460, 30 Am. Dec. 103, and note by A. C. Freeman, ib. 116; Cratch- field V. Donathon, 49 Tex. 691. (z) Williams v. Lake, 2 E. & E. 349; v. Parker, 1 Russ. & Myl. 625; Bleakly 29 L.- J. Q. B. 1. V. Smith, 11 Sim. 150. (y) M'Kune v. Joynson, 5 C. B. N. s. (i) Lobh v. Stanley, 5 Q. B. 574 ; 218; 28 L. J. C. P. isS. Johnson v. Dodgson, 2 M. & W. 653. (3) Gibson v. Holland, L. R. 1 C. P. (c) Caton v. Caton, I,. R. 2 H. L. 1; 35 L. J. C. P. 5. 127; Ogilvie v. Foljambe, 3 Mer. 63 ; («) Knight V. Crockford, 1 Esp. 190; Kronheim v. Jolinson, 7 Ch. D. 60. Taylor v. Dobbin.s, 1 Str. 399; Propert (d) Stokes d. Moore, 1 Cox, 222, 223. 278 CHAP. I.] AUTHENTICATION. * 176 there is no signing within the statute, unless the names of the parties are duly subscribed at the foot of the instrument, (e) The civil law did not recjuire the signature of a party to a written contract, if the contract was in his own handwriting. (/) But in our own law, if the defendant has written the whole con- tract with his own hand, without signing it as a concluded agree- ment, this is not sufficient, as the statute has made signing absolutely necessary for the completion of the contract, {g) A party may under certain circumstances be bound by his signature, although * he subscribed in form as a wit- [*176] ness. (h) " What, within the legal intent of the statute, will amount to a signing, is the same c^uestion in equity as at law.'' (i) Where an offer was accepted by the defendant by tele- gram, and the instructions for the message were signed by the defendant, and the telegram received by the plaintiff contained the message with the names of the sender and receiver written by the telegraph clerk on the usual printed form, it was held that there was a sufficient signature within the statute, (li) If a letter is signed and sent in an envelope containing a separate unsigned document by the same writer, and headed " supple- ment," and commencing, " I had quite omitted to tell you," but without any other reference to the letter or the letter to it, it was held that the unsigned document did not satisfy the statute of frauds. (J) If a man writes his name in the vendor's order- book, intending it as an order or authority to the vendor to send him certain goods specified therein with the prices, this is a suffi- cient signature, (m) So, if he writes his name against an entry or memorandum in a book or ledger, or indorses his name on printed particulars of sale, printed handbills, or printed descrip- tions, specifying the goods and the price, with intent to denote that he has purchased the contents, this is a sufficient signature ; (c) Hubert v. Treherne, 3 M. & Gr. (i) Morison v. Turnour, 18 Ves. 183. 743; 4 Sc. N. E. 486. (k) Godwin v. Francis, L. K. 5 C. P. (/) Inst. lib. iii. tit. 24. 295; 39 L. J. C. P. 121. (g) Ithel V. Potter, cited 1 P. Wms. {I) Eronheim v. Johnson, 7 Ch. D. 771. 60. {h) "Welford u. Beezely, 1 Ves. sen. 6; (m) Sari t;. Boiirdillon, nnfr, p. *173; Oosbell V. Archer, 2 Ad. & E. 508; 4 N. Newell v. Eadford, 37 L. J. C. P. 1; L. & M. 494. R. 3 C. P. 52. 279 *177 FORMATION OF CONTRACTS. [BOOK I. and the name may be written in pencil as well as in ink. (n) A man may sign also by his initials, or by his mark, (o) or by a stamp ; (p) and it is quite immaterial upon what part of the paper the mark or signature is to be found. But the signature must, of course, be made with a view of authenticating tlie document as a concluded contract, and not with a view merely of altering or settling a draft, or approving of propositions and proposals not finally arranged and decided upon, (q) It seems that it is not essential that the signature should be placed for no other purpose than to authenticate the contract, as where a chair- man of a company signed a minute in the minute-book for the purpose of verifying the accuracy of the entry, but the entry was in terms an admission of the contract ; (r) but where share- holders signed as between themselves articles of association in which there was a clause stating that the plaintiff should be solicitor to the company, the signatures were held to [*177] have been made * alio intuito, and that the plaintiff could not sue on the contract, (s) Signature by Agents.^ — Where the note or memorandum is signed by an agent, it is not necessary that the agent should obtain his authority by any written instrument. It has been held, consequently, that the name of the party sought to be charged, printed by a printer in particulars of sale, or in any other printed paper embodying the terms of the contract, may be a signature, by "a person lawfully authorized" within the meaning of the statute. If the party has recognized and adopted his printed name or signature, — if, for instance, he has sanc- tioned or permitted the distribution of printed handbills or printed particulars of sale in which his name appears, — there has been a signature by an agent duly authorized, upon the prin- ciple that the subsequent sanction or adoption of the printed ^ As to signature by auctioneer, see U. S. Dig. tit. Auction, sect. 36. (n) Geary v. Physic, 5 B. & C. 234; (q) Coldham v. Showier, 3 C. B. 320; 7 D. &R. 653. Hawkins v. Hohnes, 1 P. Wms. 770; (o) Huberts. Moreau, 12 Moore, 219; Doe v. Pedgriph, 4 C. & P. 312. Philliniore v. Barry, 1 Campb. 513; (i") Jones v. Victoria Graving-Dock Hyde v. Johnson, 2 Bing. N. C. 780 ; Co., 2 Q. B. D. 314. Jacob V. Kirk, 2 Jlood. & Rob. 221. (s) Eley v. Positive Government Se- (p) Bennett v. Brumfit, 37 L. J. C. P. curity Co., 1 Ex. D. 20, C. A. 88. 25. 280 CHAP. I.] AUTHENTICATION. * 178 name or signature is equivalent to an antecedent authority to the printer to print it. {t) If an agent has signed a contract without authority, and the principal subsequently adopts the contract or ratifies the transaction, he is bound by the agent's signature, (u) But the mere introduction of a name into a written or printed paper unrecognized by the party and not brought home to him as having been written or printed by his authority is, of course, no signature within the meaning of the statute, (x) A mere clerk or traveller of one party cannot be treated as an agent to bind the other, unless it be shown that he has received specific and express authority so to do. (y) One of two or more partners may bind the others by signing the cus- tomary trading name of the firm to contracts for the purchase and sale of articles usually dealt in by the firm in the course of its business, (a) An auctioneer effecting a sale by auction, or an auctioneer's clerk taking down the biddings in the presence of the purchaser, is during the continuance of the sale, but no longer, (o) the authorized agent of the vendor and purchaser, and is enabled to sign for both or either of the parties, so as to satisfy the statute of frauds ; (b) and so is a broker who is employed to sell goods, and who signs and delivers bought and sold notes, (c) Neither of the contracting parties themselves can be the agent of the other * for such a purpose : (d) the agent contem- [ * 178 ] plated by the legislature who is to bind a defendant by his signature, must be some third person ; and an auctioneer who signs the defendant's name by his authority cannot afterwards sue the latter upon the contract authenticated by such signa- ls) Schneider v. Norris, 2 M. & S. 337; Murphy v. Boese, L. R. 10 Ex. 288; Maclean v. Dunn, 1 Moo. & P. 766; 126. Saunderson v. Jackson, 2 B. & P. (z) Norton v. Seymour, 3 C. B. 792. 238. {a) Mews v. Carr, 1 H. & N. 488; 26 (m) Fitzmaurice v. Bayley, 6 E. & B. L. J. Exch. 39. 868; 26 L. J. Q.B. 114; Bigg u. Strong, (6) Hinde v. "Whitehouse, 7 East, 4 Jur. N. s. 983. 568; Emmerson v. Heelis, 2 Taunt. 38; {x) Hubert v. Turner, 4 Sc. N. R. White v. Proctor, 4 Taunt. 209; Bird v. 506; 3 M. & Gr. 343. Boulter, 4 B. & Ad. 447. {y) Graham v. Musson, 7 Sc. 769 ; (c) Rucker v. Cammeyer, 1 Esp. 104. Graham d. Fretwell, 4 Sc. K". R. 25; (d) Wrights. Dannah, 2 Campb. 203; Blore V. Sutton, 3 Mer. 245; Durell v. Sharman v. Brandt, L. E. 6 Q. B. 720; Evans, 1 H. & C. 174; 31 L. J. Exch. 40 L. J. Q. B. 312. 281 *178 FOEMATION OF CONTRACTS. [BOOK I. ture. (e) If the signature was made by the auctioneer's clerk, the auctioneer may then sue upon the contract. (/) The agency of an auctioneer, and his authority to bind the bidder by his sig- nature, may be rebutted by showing a contract between the vendor and the bidder inconsistent with such agency. Thus, wlaere goods were directed to be sold by auction by an executor, and tlie latter, before the sale, agreed with a legatee that he might bid at the sale any amount under £200, and that the price should be set off against tlie legacy, and the legatee accord- ingly attended and became the purchaser of goods to the amount of £14."!, and his name was written down on the conditions of sale by the auctioneer, it was held that the auctioneer was not, under the circumstances, an agent to bind the legatee so as to render the latter responsible for the non-payment of the price according to the terms of the conditions, {[i) Unconscientious Use of the Statute of Frauds. — Where by the fraud of one of the parties to a contract it has not been reduced into writing, he will not be allowed to set up the statute. (A) Confirmation of Promises made by Infants. — Formerly prom- ises made by infants could only be ratified by a signed writing ; but now " no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such prom- ise or ratification after full age." {i) Executory Promises requiring Authentication by Deed. — All unilateral or one-sided undertakings and engagements, where there is no mutuality of contract and nothing is given or agreed to be done, and nothing has been done, as the consideration or inducement for the promise, must be authenticated by deed in order to enable the promisee to maintain an action for the non- performance of them. Thus, as we have already seen, if one man promises another to build him a house or to render him («) Farebrother v. Simmons, 5 B. & (h) Lincoln -i'.Wright, 4 D. & J. 16; Aid. 33. Haigh ^. Kaye, L. R. 7 Ch. 469; Booth (/) Bird V. Boulter, 4 B. & Ad. 443; v. Turle, L. R. 16 Eq. 182. 1 N. & M. 313. (/) 9 Geo. IV. c. 14, sect. 5, repealed; (g) Bartlett v. Puniell, 4 Ad. fi E. 37 & 38 Vict. c. 62, sect. 2. 792; Ld. Glengall v. Barnard, 1 Kee. 769. 282 CHAP. I.] AUTHENTICATION. * 179 some certain service, and nothing is to be given or done by the promisee for the building or the service, no action lieth upon the promise; but * if the promise be made by [*179] deed, an action of covenant is maintainable upon the deed, and the consideration cannot then be inquired into {ante, p. * 2). Authentication of Leases. — By the Act to Amend the Law of Eeal Property (8 & 9 Vict. c. 106, sect. 3) it is enacted that a lease, required by law to be in writing, {!;) of any tenements or hereditaments, and an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, and a surrender in writing of an interest in any tenements or hereditaments not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the 1st day of October, 1845, shall be void at law unless made by deed. It has been held that this statute refers only to legal estates, so that an equitable interest, such as an equity of redemption, may be assigned by a note or memorandum in writing without being under seal, {l) Nor does it apply to agreements to let tolls, which are regulated by the 3 Geo. IV., c. 126, and are valid if signed by the trustees, their clerk or treasurer, notwithstanding they are not under seal, (m) A lease not under seal for a term of less than three years, but giving a right to the lessee to con- tinue to hold beyond three years, is invalid, (m) But a lease by simple contract for a term exceeding three years in duration, (^) By the statute of frauds (29 Car. thing demised;" and (sect. 3) "no II. c. 3, sect. 1) " all leases, estates, leases, estates, or interest either of free- interests of freehold or terms of years, or hold, or term of years, or any uncertain any uncertain interest of, in, to, or out interest, not heing copyhold or custom- of any messuages, manors, lands, tene- ary interest, of, in, to, or out of any ments, or hereditaments, made or created messuages, manors, lands, tenements, by livery and seisin only, or by parol, or hereditaments, shall be assigned, and not put into writing and signed by granted, or surcendered unless it be by the parties so making or creating the deed, or note in writing signed by the same, or their agents thereunto lawfully party' so assigning, granting, or surren- authorized by writing, shall have the dering the same, or their agents there- force and effect of leases or estates at unto lawfully authorized by writing, or will only, except (sect. 2) all leases not by act and operation of law. " exceeding the term of three years from {!) Stamers v, Preston, 9 Ir. C. L. E. the making thereof, whereupon the rent 355, 0. P. reserved to the landlord during such (m) Sect. 57; see Shepherd u Hods- term shall amount unto two-third parts man, 18 Q. B. 316; 21 L. J. Q. B. 263. at least of the full improved value of the (u) Hand v. Hall, 2 Ex. D. 318. 283 180 FORMATION OF CONTEACTS. [book I. though void as a lease, will operate as an agreement to grant a lease for the term specified, (o) and may be specifically en- forced ; (p) and a lease or agreement for a lease void as to the duration of the lease may regulate the terms upon which the tenancy subsists in other respects, (q) The authority of an agent to make or execute a deed [*180] for his *priacipal must be under seal, (r) except in the case of joint-contractors, one of whom, it has been held, may execute a deed for himself and the others without an authority under seal, provided he execute the deed for himself and the others //( the j'rcscna- of the others, (s) (0) Bond V. Eosling, 30 L. J. Q. B. v. Sullivan, 14 Q. B. 832; 19 L. J. Q. B. 227; Drury t!. Macnamara, 5 Ell. & Bl. 268; Tooker v. Smith, 1 H. J; X. 732; 616; 25 L. J. Q. B. 5; Tideyi). MoUett, Tress v. Savage, i Ell. & Bl. iS; 23 L. 16 C. B. N. s. 308; 33 L. J. C. P. 235. J. Q. B. 339. ip) Parker 11. Taswell, 2 De G. & J. (r) Steigiltz u. Eggington, 1 Holt, 559; 27 L. J. Cli. 812. 141. (1) Doe V. Bell, 5 T. R. 471; Eicli- {s) Ball v. DunstervUle, 4 T. E. 313. ardson v. Gilford, 1 Ad. & E. 62; Arden •28i CHAP, n.] GENERAL PRINCIPLES. * 181 *CHAPTER IT. [*181] OF THE INTERPRETATION OF CONTRACTS. SECTION I. GENERAL PRINCIPLES OF INTERPRETATION. Of the Construction of Contracts.^ — Every contract ought to be so construed that no clause, sentence, or word shall be super- 1 Upon the general subject of interpretation or construction of contracts, see 2 Pars. Contr. 491-547; 1 Story, Contr. c. 20, sects. 771-818 ; Met. Contr. c. 5, 272-316; 2 Kent, Com. 727; 2 Minor, Inst. c. 24 ; 1 Wait, Act. & Def. 114 Report of a Proposed Civil Code for New York, Albany, 1865, sects. 800-826 U. S. Dig. tit. Contracts, 111. As to any distinction between "construction' and "interpretation," see those words in Abb. L. Diet. As to reception of parol evidence to aid in construction of a written contract, see Section II. post. The following are general rules : — 1. The actual intention of the parties at the time of contracting is the chief guide in the construction of contracts, and if this intent can be ascertained, and is lawful, it must govern. Hollingsworth v. Fry, 4 Dall. 345 ; The Ida, Daveis, 407 ; Lemmons v. Flanakin, Hempst. 32 ; "Watts v. Sheppard, 2 Ala. 425; White- hurst V. Boyd, 8 Ala. 375 ; Steele v. Branch, 40 Cal. 3 ; Brown v. Slater, 16 Conn. 192; Benjamin v. McConnell, 9 111. 536; Robinson v. Stow, 39 111. 568; Walker v. Tucker, 70 111. 527; Hunter v. Miller, 6 B. Mon. 612 ; Hawe^ v. Smith, 12 Me. 429 ; Higgins v. Wasgatt, 34 Me. 305; People v. Gosper, 3 Neb. 285; Den V. Camp, 19 N. J. L. 148; Piatt v. Lott, 17 N. Y. 478; Belmont v. Coman, 22 N. Y. 438; Tucker v. Meeks, 2 Sweeny, 736; Noyes v. Nichols, 28 Vt. 159; Met. Contr. 274, 303; 2 Minor, Inst. 949-951; 2 Pars. Contr. 494, 503; 1 Story, Contr. (5th ed.) 773-776. If the contract was not written, its nature and terms must be ascertained as matter of fact from the conversations, negotiations, and acts of the parties by whom it was made. Massey v. Belisle, 2 Ired. L. 170; Edwards v. Goldsmith, 16 Pa. St. 43. If the contract was reduced to writing, the language of the written instrument, if lucid, is the best evidence of the in- tent. Rogers v. Atkin.son, 1 Ga. 12; Walker i;. Tucker, 70 111. 527; Green o. Day, 34 Iowa, 328; Eobb v. Bancroft, 13 Kan. 123; McLellan v. Cumberland Bank, 24 Me. 566; Jeffrey v. Grant, 37 Me. 236; Mumford v. McPherson, 1 Johns. 414; Howes v. Barker, 3 Johns. 506 ; Parkhurst v. Van Courtlandt, 1 Johns. Ch. 273 ; Westcott v. Thompson, 18 N. Y. 367; Norton v. Woodruff, 2 N. Y. 339; Buck V. Burk, 18 N. Y. 339 ; Dent v. North American Steamship Co., 49 N. Y. 390; Watrous v. McKie, 54 Tex. 65. Compare Von Killer v. Schulting, 50 N. Y. 108; 2 Pars. Contr. 496, 499, 548. If parties make a writing, regarding it at the time as only provisional, but after- 285 * 181 INTEEPKETATION OF CONTRACTS. [BOOK I. fluous, void, or insignificant. Every word ought to operate in some shape or other ; nam verba dcbent mtelligi cum effedu ut res wards adopt it as a written contract, its language (properly interpreted) will control. Lawrence v. Dana, 4 Cliff. 1; Higgins v. Missouri, &c. R. E. Co., 73 Mo. 598. If a contract, though awkwardly expressed, can be construed without the aid of parol evidence, it will be enforced according to its apparent terms. Boyer -v. Ausburn, 64 Ga. 271. Where the language of a contract is ambiguous, courts endeavor to ascertain and give effect to the intention of the parties. Walker v. Tucker, 70 111. 527. 2. When different parts of an agreement or a transaction have been by the parties embodied in different writings, all these writings may be construed and considered together, or as if they formed a single instrument. Whitehurst v. Boyd, 8 Ala. 375; S.-wall v. Henry, 9 Ala. 24; Casey ti. Holmes, 10 Ala. 776; Byrne v. Marshall, 44 Ala. 355; Duncan v. Charles, 6 111. 561; Denby v. Graff, 10 111. App. 195; Thomas v. Austin, 4 Barb. 265; Allen v. Kofsinger, 13 Ind. 494; Akin V. Drummond, 2 La. Ann. 92; ISTewall v. AVright, 3 Mass. 138; Hunt v. Livermore, 5 Pick. 395; Sibley!). Halden, 10 Pick. 250; Taunton, &c. Turnpike Corp. V. Whiting, 10 Mass. 327; Makepeace v. Harvard College, 10 Pick. 298; Hill V. Huntress, 43 N. H. 480; Cornell v. Todd, 2 Den. 133; Hanfordii. Rogers, 11 Barb. 18 ; Hull v. Adams, 1 Hill (N. Y. ), 601 ; Jackson v. Dunsbagh, 1 Johns. Cas. 91; Jackson v. McKenny, 5 Wend. 233; AVright v. Douglass, 7 X. Y. 564; Hutterneier -o. Albro, 18 N. Y. 4S; Hamilton v. Taylur, ib. 358; Church u Brown, 21 N. Y. 315; Pepper v. Haight, 20 Barb. 429; Dean v. Lawham, 7 Oreg. 422; Wallis^. Bcauchamp, 15 Tex.^303; Strong d. Barnes, 11 Vt. 221; Reed u. Field, 15 Vt. 672; Norton v. Kearney, 10 Wis. 443; 2 Pars. Contr. 553, 554; 1 Story, Contr. sect. 806; 2 Minor, Inst. 952. This maybe done notwithstanding the papers were made at different times (Stacey v. Randall, 1 7 111. 407 ; Brandreth v. Sandford, 1 Duer, 390; Van Hagen v. Van Rensselaer, 18 Johns. 420; Sawyer v. Hammatt, 15 Me. 40; Adams v. Hill, 16 Me. 215), but is not allowable unless the various papers were made between the same parties (Craig v. Wells, 11 N. Y. 315); relate to the same subject-matter (Cornell v. Todd, 2 Den. 130) or transaction (Mann v. Witbeck, 17 Barb. 388). In like manner, when one instrument makes reference, explicitly or tacitly, to another, the latter may be read to explain and complete the former (Vaugine v. Taylor, 18 Ark. 65: Pillow v. Brown, 26 Ark. 240; Bradley v. Marshall, 54 111. 173; Dillingham r. EstiR, 3 Dana, 21; Park v. Cooke, 3 Bush, 168; Adams ^u. Hill, 16 Me. 215; Eorabacher v. Lee, 16 Mich. 169; Rogers v. Kneeland, 13 Wend. 114; Smith v. Turpin, 20 Ohio St. 47S; Phillips V. Scott, 2 Watts, 318; Spangler v. Springer, 22 Pa. St. 454; Wilson v. Randall, 07 N. Y. 338; Bobbitt v. Globe Ins. Co., 66 N. C. 71); and when the parties to a writing have indorsed iipon it any admission, declaration, or memoran- dum of facts connected with the transaction, the same may be read with the principal paper to explain it (Jones v. Overstreet, 47 T. B. Mon. 547; Langdale V. People, 100 lU. 263; Logan v. Tiljbott, 4 Greene, 3S9; Heywood v. Perriu, 10 Pick. 228; Thomas v. Austin, 4 Barb. 265; Mallory r. Tioga R, R. Co., 3 Abb. App. Dec. 139; Van Kostrand v. New York Guaranty, &c. Co., 39 X. Y. Superior Ct. 73). If parties to a contract made outside of the Gold Exchange insert in it a stipulation that it is made and shall be settled according to the rules of the Gold Exchange, those rules will govern. Mills v. Gould, 42 N. Y. Superior Ct. 119. Where two parties enter into a mutual agreement, which is evidenced by two papers each signed by one party and given to the other, the two instruments are to be construed as one. Hunt v. Frost, 4 Gush. 54. Compare Judd v. Ensign, 6 286 CHAP. II.] GENERAL PRINCIPLES. * 181 magis valeat quam pereat. One part must be so construed with another that the whole may, if possible, stand ; but a clause or Barb. 258, for the rule applicable when the two counterparts of an agreement rtdtiiiued by the parties respectively differ. \yiii;n a negotiation is conducted and completed by con-espondence by mail or telegraph, all the letters or despatches in which the dealing is embodied may be read together to determine the contract; see Stover v. Metzgar, 1 Watts & S. 269. Commercial letters are not to be construed upon the same principle as bonds, but ought to receive a fair and reasonable interpretation, according to the true import of the terms, or to what is fairly to be presumed to have been the under- standing of the parties; and the presumption is to be ascertained from the facts and circumstances accompanying the entire transaction. Bell v. Bruen, 1 How. 169; 17 Pet. 161; Lawrence d. McCalmont, 2 How. 426. For instances in which a series of letters embodying a negotiation have been construed as a contract, see Quincy Bank v. Hall, 101 U. S. 43; Strong v. Catlin, 35 Ala. 607; Ellis v. Craw- ford, 39 Cal. 523; Smith v. Bell, 30 Ga. 919; Kimbell v. Morcland, 55 Ga. 164; Bryant v. Booze, ib. 438; Stockham v. Stockham, 32 Md. 196; Hunt r. Johnson, 24 Mo. 509; Abbott v. Shepard, 48 N. H. 14; Frith v. Lawrence, 1 Paige, 434; Taylor v. P.ennie, 35 Barb. 272; Trevor v. Wood, 41 Barb. 255; Wells v. Mil- waukee, &e. E. R. Co., 30 Wis. 605; Washburn r. Fletcher, 42 Wis. 152. See further, 1 Pars. Contr. 483, 484, 525; 1 Story, Contr. (5th ed.) sects. 498-508. 3. It is the intention of the parties, the purpose and understanding which they held in common, not the design of either individually, which is to be ascertained and followed. Briggs «. Vanderbilt, 19 Barb. 222; Brunhild v. Freeman, 77 N. C. 128; Roger's v. Broadnax, 27 Tex. 238. The construction of a contract does not depend upon what either party thought, but upon what both agreed. Brunhild v. Freeman, 77 N. C. 128. Thus the language used by either party is to receive such a construction as he at the time supposed the other party would give to it, or such a construction as the other party was fairly justified in giving to it. Barlow V. Scott, 24 N. Y. 40; Guiniison i: Bancroft, 11 Vt. 490. The law will presume that a person meant what his language by its terms, and under the circumstances in which it was used, would be fairly understood to mean, and this presumption cannot be rebutted by proof that he intended something more or different, which he made no attempt to express, and which a person dealing with him neither uuder.stood nor had reason to understand. Clark u. Lillie, 39 Vt. 405; Locke i). S. C. & P. R. Co., 46 Iowa, 109; S. P. Merri^m v. Pine City Lumber Co., 23 Minn. 314. But the understanding or intention of a party to a contract does not in all cases limit his liability. White v. Van Horn, 19 Iowa, 189. One is not bound to do acts not contracted for, merely because he knew that the other party expected and understood he would perform them. Sanford v. Howard, 29 Ala. 684; John- son V. Sellers, 33 Ala. 265. The construction of a written agreement cannot depend on the motives, purposes, or expectations of a party to it, as contradis- tinguished from the plain import of the words used. Watrous v. McKie, 54 Tex. 65. See further, 2 Pars, Contr. 494, 500, 505; 1 Story, Contr. (5th ed.) sects. 774-779; 2 Minor, Inst. 949-951, 962. 4. In construing the language of written contracts to ascertain the intention, regard must be had to the nature of the instrument itself, the condition of the parties executing it, and the objects which they had in view. Lawrence v. Dana, 4 Cliff. 1; The Ida, Daveis, 407; Strong v. Gregory, 19 Ala. 146; Conwell v. Pumphrey, 9 Ind. 136; Montgomery v. Firemen's Ins. Co., 16 B. Mon. 427; Murray v. Carothers, 1 Met. (Ky.) 71; White v. Booker, 4 Met. (Ky. ) 267; 237 * 181 INTERPRETATION OF CONTRACTS. [BOOK I. particular sentence totally repugnant to the general intent of the contract is void, and must be rejected, (a) The terms of the Akin V. DrummoTid, 2 La. Ann. 92; Eobinson v. Fiske, 25 Me. 401; Merrill v. Gore, 29 Me. 346; Higgins «. Wa.sgatt, 34 Me. 305; Salmon Falls Manuf. Co. V. Portsmouth Co., 46 N. H. 249; Springstreen v. Samson, 32 N". Y. 703; Lacy v. Green, 84 Pa. St. 514; Tabb v. Archer, 3 Hen. & M. 399. Technical legal terms of contract are not required, and their absence is unimportant if an actual agree- ment is shown (Canal Co. v. Railroad Co., 4 Gill & J. 1; Barney v. Worthington, 37 N. Y. 112); but when terms of law are used in defining the obligations assumed by the parties, their technical legal sense should be preferred (Ellmaker v. EU- maker, 4 Watts, 89; Findley ii. Findley, 11 Graft. 434); yet the fact that the parties have designated the contract by a particular legal name will not prevent its being treated according to its real nature (Heryford v. Davis, 102 U. S. 235). In general, words having a popular and also a technical sense will be presumed to have been used in the former. Hawes v. Smith, 12 Me. 429; Casleri). Connecticut Mutual Life Ins. Co., 22 N. Y. 427; Schenck -b. Campbell, 11 Abb. Pr. 292; Mansfield, &c. R. R. Co. «. Veeder, 17 Ohio, 385; Schuylkill Nav. Co. y. Moore, 2 Whart. 491. The punctuation may be considered whenever it aids in fixing the meaning, but it does not control (English v. McNair, 34 Ala. 40; Osborn v. Farwell, 87 111. 89; White v. Smith, 33 Pa. St. 186); neither do rules of grammar (Xcttleton V. Billings, 13 N. H. 446; Tucker v. Meeks, 2 Sweeny, 736; Gray v. Clark, 11 Vt. 583). 5. A written contract should be read as a whole; all its provisions are to be considered, and the general design must not be frustrated by allowing too much force to single words or clauses. Brown v. Slater, 16 Conn. 192; Stewart v. Pres- ton, 1 Fla. 10; Stout v. Whitney, 12 111. 218; Tracy v. Chicago, 24 111. 500; District Township v. Dubuque, 7 Iowa, 262; Thompson v. Kelso, 3 La. Ann. 577; Henderson v. Rost, 5 La. Ann. 441, 467; Chase v. Bradley, 26 Jle. 531; Merrill V. Gore, 29 Me. 346; Smith -w. Davenpoit, 34 Me. 520; Chapman v. Seccomb, 36 Me. 102; Varnum v. Thruston, 17 Md. 470, 496; Sumner v. Williams, 8 Mass. 214; Knower v. Emerson, 9 Pick. 422; Haywood v. Perrin, 10 Pick. 228; Rose v. Roberts, 9 Minn. 119; Goosey v. Goosey, 48 Miss. 210; People v. Gosper, 3 Neb. 285; Salmon Falls Manuf. Co. v. Portsmouth Co., 46 N. H. 249; Ward u. Whit- ney, 8 N. Y. 442; Hamilton v. Taylor, IS X. Y. 358; Richards v. Warring, 39 Barb. 42; Kelley v. Upton, 5 Duer, 340; Tucker v. Meeks, 2 Sweeny, 736 ; Kelly V. Mills, 8 Ohio, 325; Stewart v. Lang, 37 Pa. St. 201; Williamson r. McClure, ib. 402; Swisher v. Grumbles, 18 Tex. 164; Tabb v. Archer, 3 Hen. & Jl. 399. See further, 2 Pars. Contr. 501-506. Verbal criticism is subordinate, in construc- tion, to the study of the intent. Caldwell v. Layton, 44 Mo, 220. Care must be taken to ascertain the meaning of all the parts, and to construe them in their relation to each other, and so that if possible they may operate harmoniously. Baron v. Placide, 7 La. Ann. 229; Metcalf r. Taylor, 36 Me. 28; Heywood v. Hey- wood, 42 Me, 229; Hazleton, &c. Coal Co. v. Buck Mountain Coal Co., 57 Pa. St. 301. The various clauses must be read in subordination to the general purpose (Decker u Furniss, 14 N. Y. 611; Kelley i). Upton, 5 Duer, 336), and clauses or ■words which appear repugnant to each other must, if practicable, receive such an (a) Parkhurst v. Smith, Willes, 332; Trenchard v. Hoskins, Winch, 93 ; Solly V. Forbes, 2 B. & B, 38; 4 Moore, Domat's Civil Law, 1. 1, tit. 1, sect. 2, 463; Eyston v. Studd, Plowd. 465; xi.; Shep. Touch. 88. 288 CHAP. II.] GENERAL PRINCIPLES. * 181 contract "are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the interpretation as will give them operation consistent with the general purpose (Decorah v. Kesselnicier, 45 Iowa, 166; Ward v. Whitney, 8 N. Y. 442; Casler v. Connecticut Mut. Life Ins. Co., 22 N. Y. 42.5; Harper v. New York City Ins. Co., ib. 441. Vet whenever particular words or clauses appear to liave been introduced with a purpose of restricting the general language, that effect will be given to them. Bell t). Bruen, 1 How. 169, 184; followed, Lawrence?). McCalmont, 2 How. 449; Holmes -u. Martin, 10 Ga. fiOS; Vaughan i). Porter, 16 Vt. 266; Baxter v. State, 9 Wis. 38. However broad the general language of a contract may be, the obliga- tion of the parties will be limited to those things as to which they intended to contract. Piatt v. Lett, 17 N. Y'. 478. A clause or a word may be rejected which is irreconcilable with the nature of the contract or tlie general design of the parties (Stockton v. Turner, 7 J. J. Marsh. 192; Buck v. Burk, 18 N. Y. 337; 1 Story, Contr. (5tli ed. ) sect. 809), or to which no meaning can be assigned in view of the connection in which it is used, and of the whole instrument (Tucker v. Meeks, 2 Sweeny, 736; Decorah v. Kesselmeier, 45 Iowa, 166). Parts of a general project or scheme, not intended to stand as separate and independent transactions, cannot be enforced while other parts of the scheme remain unaccomplished, but will be severally annulled and the parties left to their original rights. Bell v. Bowers, 4 Coldw. 311. Although a clause in a ^vl•itten contract would have by grammatical construction one application, yet if from the whole tenor of the writing it is manifest that the parties intended it should have a more extended effect, it will be construed according to the evident intention. Morey v. Homau, 10 Vt. 565. 6. Where a clause in a contract is susceptible of two constructions, it must be taken in the sense that will give to it some operation, rather than that which will have none. i?e Dunkerson, 4 Bi.ss. 227; Evans v. Sanders, 8 Port. 497; Brown V. Slater, 16 Conn. 192; Riley v. Vanhouton, 5 Miss. 428; Peckham v. Haddock, 36 111. 38; Morancy v. Dumesnil, 3 La. Ann. 363; Steenspring v. Bennett, 16 La. Ann. 201; Archibald v. Thomas, 3 Cow. 284; Richards v. Warring, 39 Barb. 42; Hunter v. Anthony, 8 Jones L. 385; Worrall's accounts 5 Watts & S. Ill; Thrall V. Newell, 19 Vt. 202; see also 2 Pars. Contr. 503-505; 2 Minor, Inst. 954. Or if a clause is susceptible of two interpretations, one legal and the other illegal, that one must be preferred which makes the contract valid. Chittenden v. French, 21 111. 598; Merrill v. Melchior, 30 Miss. 516; Lessley v. Phipps, 49 Miss. 790; Clark v. Pinney, 7 Cow. 681; Coyne v. Weaver, 84 N. Y. 386. Thus, covenants tending in restraint of trade will be strictly construed. Wiggins Ferry Co. V. Ohio, &c. Ry. Co. 72 111. 360. 7. When portions of a contract are printed and others written, the written are to control the printed words if there is any inconsistency (American Exp. Co. v. Pinckney, 29 111. 392; Woodruff v. Commercial, &c. Ins. Co., 2 Hilt. 122; Harper V. New York City Ins. Co., 22 N. Y. 441; Clark v. Woodruff, 83 N. Y. 518), or, as the rule has been somewhat more precisely stated: Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original coptrol those which are copied from a form ; and if the two are absolutely repugnant, the latter must be so far disregarded. Report N. Y. Civ. Code, sect. 816. See VOI,. I. 19 289 * 181 INTERPRETATION OF CONTRACTS. [BOOK I. subject-matter, as by the known usage of trade or the like, ac- quired a peculiar sense distinct from tlie popular sense of the also 2 Pars. Contr. 516; Rush v. Carpenter, 54 Iowa, 132. But of public contracts it has been said, that where contracts are prepared by the government on printed blanks, it is important that the unchanging (printed) portion should receive a uniform and unvarying construction. Yates v. United States, 15 Ct. of C'l. 120. 8. Language iu a written contract which is of doubtful or ambiguous meaning wQl be construed most strongly against the person using the language, or who has caused the uncertainty to cxiit, and in favor of him who has been misled ; espe- cially if he has advanced his money upon it. Evans v. Sanders, 8 Port. 497; Liv- ing.ston v. Arrington, 28 Ala. 424; Union Bank v. Guice, 2 La. Ann. 249; Hoover V. Miller, 6 La. Ann. 204; Koonan v. Bradley, 9 Wall. 394; Barney ». Newcomb, 9 Cush. 46; Marion v. Stone, 2 Cow. 781, 806. But this rule is one of last resort, applicable only where the language of the instrament will equally admit of either of two or more iutei-pretations. Fallcy v. Giles, 29 Ind. 114. And the courts will endeavor to avoid a result which is unequal, unreasonable, and improbable, jtioyal- ton V. Royalton, &,.: Turnpike Co., 14 Vt. 311; s. P. Whitis v. Polk, 36 Tex. 502. Ambiguity in a public contract is attributed to the private jiarty; in a private contract to the proinisor. Jackson v. Reeves, 3 Cai. 293; and see Mohawk Bridge Co. !•. Utica, &r. R. R. Co., 6 Paige, 554. Si-c further 2 Pars. Contr. 506; 1 Story, Contr. {5th ed.) icct. 811 ; 2 Minor, Inst. 953. 9. Entire and separable contracts, and apportionments, see Huey v. Grinnell, 50 111. 179; Shinn v. Bodine, 60 Pa. St. 182 ; Newton v. Winchester, 16 Gray, 208 ; Allen v. Brown, 43 Ga. 305 ; Coburn r. Hartford, 38 Conn. 290 ; Barker v. Reagan, 4 Heisk. 590 ; HoUis v. Chapman, 36 Tex. 1 ; McDaniels v. Whitney, 38 Iowa, 60 ; Maryland Fertilizing, &c. Co. v. Lorentz, 44 Md. 218; see also 1 Story, Contr. (5t.h ed. ) sects. 2."j-34; 2 Pars. Contr. 517; note by A. C. Freeman on apportionment of contracts, 31 Am. Dec. 317; Clark ■;;. Sawyer, 121 Mass. 224; Quigley V. De Haas, 82 Pa. St. 267 ; Butler v. Butler, 77 N. Y. 472; Scott v. Kittan- ing (;oal Co., 89 Pa. St. 231 (and note by A. Biddle, 19 Am. L. Reg. N. .s. 418); Hartley iJ. Decker, ib. 470; Tenny v. Mulvaney, 8 Oreg. 129; Butler v. Pace, 17 Hun, 406 ; Tarbox d. Hartenstein, 4 Baxt. 78; Fugel v. Latour, 81* Pa. St. 448; Murphy ■». St. Louis, 8 Mo. App. 483; Burckhardtf. Burckhardt, 36 Ohio St. 261. No ]irccise rule can be laid down for the solution of the question whether a contract is entire or separable, but it must be solved by con.sidering both the laa- guage and the subject-matter of the contract. When the price is expressly appor- tioned by the contract, or the apportionment may be implied by law, to each item to be performed, the contract will generally be held to be severable. More o. Bonnet, 40 Cal. 251. The question as to whether a contract is entire or separable, depends to some extent upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract. Southwell V. Beezlcy, 5 Oreg. 458. The consideration to be paid, not the subject or thing to be performed, deter- mines whether a contract is entire or severable. A contract consisting of several distinct items and founded on a consideration which is apportioned to each item, is severable. Lucesco Oil Co. v. Brewer, 66 Pa. St. 351. Providing for payments from time to time as the work progresses does not make the contract severable. Cox 1). Western Pacific R. R. Co., 44 Cal. 18. A contract for a specific service at an agreed price is entire; and the price does 290 CHAP. II.] GENERAL PRINCIPLES. * 181 same words." (6) Technical words of law, however, are to have their legal effect, unless from subsequent inconsistent words it is not 'become payable until the service is wholly rendered. Eockwell v. Newton, ii Conn. 333. One who for a stipulated price undertakes to find a purchaser for a farm, is not entitled to anything unless he finds a purchaser willing to buy the whole farm. Weber v. Clark, 24 Minn. 354. On a, subscription paper by which the subscribers are hound severally and not jointly, two subscriptions made at the same time and by the same person, but one in his individual name and the other with the addition, Ex'r, are separate contracts on which separate actions will lie. Erie, &c. E. E. Co. v. Patrick, 2 Abb. App. Dec. 72. A contract which is for the sale of several distinct things, as for the sale of a town lot and personal property, hut all for one con.sideration, is an entire contract, and not divisible, except by the consent of both parties thereto, and the making of a new contract. Scheland v. Erpelding, 6 Oreg. 258. Where one enters into a special contract to peiform a certain task, and after performing a part of it fails for some reason other than a voluntary abandonment to complete the work, the part performed being of value to the person by whom he was employed, the employee may recover for such service its reasonable value after deducting any damages the employer may have sustained by reason of its non-completion. Steeples v. Newton, 7 Oreg. 110. A joint contract by two persons for the purchase of land is an entirety, and cannot he repudiated by one without the assent of the other. Merriman v. Nor- man, 9 Heisk. 269. 10. Joinder, and whether contracts will he constituted as joint, or joint and several, or several, see 1 Pars. Contr. 11; 1 Story, Contr. (5th ed.) sects. 52-71; 2 Minor, Inst. 750; Stowers v. Blackburn, 21 La. Ann. 137; Mnrtland v. Hol- ton, 44 Mo. 58; New Haven, &c. < 'o. v. Hayden, 119 Mass. 361. An agreement between a number of persons to "pay the suras annexed to their names," in order to make an aggregate sura to be paid to another person in consid- eration of services to be rendered, creates a several and not a joint obligation. Moss V. Wilson, 40 Cal. 159. 11. The law in force at the time when a contract was made, rather than later enactments, governs its construction, ('aldwell v. Carrington, 9 Pet. 86; Gelpcke V. Dubuque, 1 Wall. 175, 206; The Miantinomi, 3 Walk jr. 46; Madera v. Jones, 1 Morr. 204; Forgay v. Ferguson, 6 La. Ann. 770; O'Kelly v. Williams, 84 N. 0. 281; Gilliland v. Phillips, 1 S. C. 152; Lessley v. Phipps, 49 Miss. 790; 1 Story, Contr. (5th ed.) sect. 805; 2 Minor, Inst. 950, 954 ; hut see State v. Pils- bury, 31 La. Ann. 1. For instances in which the general law has been deemed to form part of a contract, or to explain provisions otherwise doubtful, see State v. AUis, 18 Ark. 269; Webster v. Eees, 23 Iowa, 269; Dufief v. Boykin, 9 La. Ann. 295; Rogers t). Allen, 47 N. H. 529 ; Clark i). Pinney, 7 Cow. 681; Smith?). Elliott, 39 Tex. 201 ; also 2 Pars. Contr. 494, 500, 505. Parties making contracts must be considered as looking to the municipal law for remedies to enforce their rights; hence this law must be considered as entering into and forming part of the obliga- tion (Lessley v. Phipps, 49 Miss. 790; hut see State v. Pilsbury, 31 La. Ann. 1); (i) Lord Ellenborough, Eobertson v. 13 M. & W. 511; Scott v. Bourdillon, French, 4 East, 137; Mallan o. May, 5 B. & P. 213. 291 * 182 INTERPKETATION OF CONTEACTS. [BOOK I. very clear that the parties used them in a sense different from their legal meaning ; and tlie ordinary grammatical construction is to be followed, unless it is repugnant to the general context of the written instrument, (c) If the parties liave used technical terms and words of art unintelligible to the ordinary reader, but having a clear, distinct, and definite meaning amongst mechanics or merchants, extrinsic evidence of such meaning may be given in aid of the interpretation of the deed, and to give the words their proper and known signification, (d) Bad spelling is of no consequence, so long as it appears with certainty [ * 182 ] wliat is meant, (e) But an agreement, the * terms of which are unintelligible (/) or too vague, ([/) cannot be enforced. and this rule includes not only a statute, but its construction by the courts (Smith V. Elliott, 39 Tex. 201; and see 2 Pars. Contr. 569). Where there is a conflict of applicable laws, the parties are presumed to have made the contract with reference to that statute which is most favorable to its val- idity and performance. Talbott ■(>. Merchants', &c. Trausp. Co., 41 Iowa, 247. 12. The ordinary construction of a contract between an individual and the Government of the United States, or of a State, is the same as that applied to con- tracts between private parties. Gilbert v. United States, 1 Ct. of CI. 28; Sholes V. State, 2 Chand. 182. Legislative contracts embodied in charters are to be con- strued favorably to the sovereign power, yet so as to effect the intention; the courts are aa much bound to sustain the intention, if clear, as in case of a private con- tract. Home of the Friendless v. Rouse, 8 Wall. 430; see further, 2 Pars. Contr. 504, 613-527; 1 Story, Contr. (5th ed.), sect. 812; 1 Minor, Inst. 503, 535, 578-. 587. As to receiving evidence of the circumstances attending the making a contract and of the contemporaneous or subsequent acts of the parties, see ;)<«/, p. * 132. Covenants, how construed ami whether dependent or independent, see p. *186. Conditions, and whether precedent or subseiiuent, ^ee p. ' 190. Law of place in its application to construction of contracts, see pp. * 194, * 197 ; to their validity, see p. *1191. General doctrine of admissibility of oral evidence in determining meaning of written contracts, see p. *19S; receiving for that purpose evidence of customs and usages, see p. *203; or testimony of experts to explain technical words, see p. * 205. Stipulations maiving payment dependent on performance being satisfactory or approved by an expert, see p. * 394. Time, when of the essence of a contract, see p. *891. Whether a contract is to be construed as allowing liquidated damages or a penalty, see p. *1113. Treatment of mistakes in written contracts, see p. *1181. Alternative contracts and options, see p. *1187. (c) Leest). Mosley, 1 You. & C. 607; {f) Guthing v. Lvnn, 2 B. & Ad. Elliott V. Turner, 2 C. B. 446. 232. (d) Goblett V. Beechy, 3 Sim. 24. (g) Pearce v. Watts, L. R. 20 Eq. (<•) Hulbert v. Long, Cro. Jae. 607; 492; Taylor v. Portington, 7 De G. M. Osborn's case, 10 Co. 130 a, 2 Roll. Abr. & G. 328. 147. 292 CHAP. II.] GENERAL PRINCIPLES. *182 Evidence of Su-Tounding Circumstances, ^ — To enable US also to arrive at the real iiiteution of the parties, and to make a cor- 1 In the construction of a written contract, the court mu.st place itself in the position of the contracting parties at tlie time of its execution, and look at the occasion which gave rise tu it, the relative positions of the parties, and their obvious designs as to tlie objects to be acconjplished ; yet not in order to create diiferent obligations from those embodied in the instrument^ for if the meaning and intention of the parties cannot be ascertained from the language employed, when thus illustrated, the contract is void for uncertainty. HoUingsworth i;. Fry, 4 DaU. 345; Pollard v. Maddox, 28 Ala. 321; Brown v. Slater, 16 Conn. 192; Eobinsont). Stow, 39 111. 668; Thomas j). Wiggers, 41 lU. 470; Karmullert). Krotz, 18 Iowa, 352 ; Sumner v. Williams, 8 Mass. 162, 214; Fowle v. Bigelow, 10 Mass. 379; Hopkins v. Young, 11 Mass. 302; Pratt v. Canton Cotton Co., 51 Miss. 470; Wilson V. Troup, 2 Cow. 195, 228; Sayre v. Peck, 1 Barb. 464 ; Hasbrook ij. Pad- dock, ib. 635 ; Doolittle v. Southworth, 3 Barb. 79; Bellinger v. Kitts, 6 Barb. 273; Phelps D. Bostwick, 22 Barb. 314; Schonck v. Campbell, 11 Abb. Pr. ^92; French v. Carhart, 1 N. Y. 96; Moore v. Meacham, 10 N. Y. 207; Blossom v. Griffin, 13 N. Y. 569 ; Westcott v. Thompson, 18 N. Y. 363 ; Dent v. North American Steamship Co., 49 N. Y. 390 ; Lacy v. Green, 84 Pa. St. 514. Thus in an action on a contract for sale of gold made between membei-s of the Gold Exchange, the constitution and by-laws of the Exchange are admissible, and its provisions governing settlement of such sales are a part of the contract. Peabody V. Speyers, 56 N. Y. 230. But the rule does not admit proof of what tie parties said orally while making the written contract. Dent v. North American Steam- ship Co., 49 N. Y. 390. As to the reception of p.nrol evidence of the circumstances attending the making of a written contract, see Section II., post. Doubt as to the true interpretation of the language of a contract may often be removed by viewing the acts of the parties as having placed a construction upon it. Chicago v. Sheldon, 9 Wall. 50 ; Wilcoxen v. Bowles, 1 La. Ann. 230 ; Parrotti). Wikoff, ib. 232; Williamson v. McHatton, 16 La. Ann. 196; Frigerio V. Stillman, 17 La. Ann. 23; Commercial Bank v. New Orleans, ib. 190; Citizens' Fire Ins., &c. Co. v. Doll, 35 Md. 89; Fogg v. Middlesex Mut. Fire Ins. Co., 10 Cush. 337; Stapenhorst v. Wolff, 35 N. Y. Superior Ct. 25. This rule does not mean that one party can by his subsequent conduct affect the construction to be placed on the contract (Hepburn v. Snyder, 3 Pa. St. 72), nor that an error of the parties as to the effect of the instrument will bind them, if the meaning is clear (Citizens' Fire Ins., &c. Co. v. Doll, 35 Md. 89; Sjiencer v. Millisack, 52 Iowa, 31) ; but if the conduct of all the parties is con.^istent with one construc- tion of the agreement, and wholly inconsistent with another, the former must he preferred, even though the latter should be the more natural < Price v. Evans, 26 Mo. 30). So if they have by contemporaneous writings assigned a particular mean- ing to a word used in their contract, that meaning will be preferred {Conover v. Wardell, 20 N. J. Eq. 266); and their understanding of the meanings of terms employed in it may be shown, though not their understanding of its effect (Had- dock V. Woods, 46 Iowa, 433 ; and see Pilmer v. Branch of State Bank, 16 Iowa, 321 ; Huse V. Hamblin, 29 Iowa, 501). So where the intent is doubtful, the man- ner in which the contract has been, or has been attempted to be, executed by both or one of the parties, with the express or implied assent of the other, may furnish a rule for its interpretation ; but regard should be had not to single acts, but to the whole execution of the agreement. Farrar v. Eowly, 2 La. Ann. 475; D'Aquin v, Barbour, 4 La. Ann. 441; Casey v. Pennoyer, 6 La. Ann. 776. So if they have, 293 * 182 INTEEPKETATION OF CONTRACTS. [BOOK I. rect application of the words aud language of the contract to the subject-matter thereof and the objects professed to be described, all the surrounding facts and circumstances may be taken into consideration. The law does not deny to the reader the same light and information that the writer enjoyed ; he may acquaint himself with the persons and circumstances which are the sub- jects of the allusions and statements in the writing, and is enti- tled to place himself in the same situation as the party who made the contract, to view the circumstances as he viewed them, and so judge of the meaning of the words and of the correct appli- cation of the language to the things described, (h) "Where a lease had been made by the plaintiff to the defendant of part of a messuage, together with a piece of ground thereunto adjoining, which piece of ground was used as a yard, and beneath the yard was a cellar occupied by a third party under a lease previously granted to him by the plaintiff, and the occupant of the cellar continued to reside in it, and to pay rent to the plaintiff, for three or four years after the latter had demised the yard to the defendant, but his lease having expired, and he having quitted the cellar, the defendant took ]:>ossessiun of it, contending that the cellar had pa.ssed to him by the demise of the yard, the court held that parol evidence of the surrounding circumstances was admissible to show that it did not pass, (i) Where by deed a customer gave a charge to his bankers upon property mentioned in a schedule as "three leasehold houses in the Coity [sic] held under a lease of September 25," and the though only tacitly, adopted a usage of trade, that usage, if lawful and consistent with the language, will control. Appleman v. Fisher, 34 Md. 540. Where the parties (there heing no fraud or concealment or mistake or ignorance of facts) have themselves put a construction on the terms of the contract, such construction must control, as in the nature of an estoppel. Citizens' Fire Ins., &e. Go. (.. Doll, 35 Md. 89 ; Farley v. Pettes, 5 Mo. Apj.. 262; Reading v. Gray, 37 N. Y. Superior It. 79. But the parties can review their decision and arrive at a different construction, and if the different conclusion be acted on, it will in its turn become conclusive, unless the parties review it. Reading v. Gray, !.apra. (h) Shore ■v. Wilson, 9 CI. & Fin. (,:) Doe v. Burt, 1 T. E. 703 ; Press 555, 569; Macdonaldi>. Longbottom, 29 v. Parkei-, 10 Moore, 158 ; AVi^ram on L. J. Q. B. 256; 1 El. & Bl. 987; Mum- Evidence, 53, 76, 83, 3rd ed ■" Doe v ford V. Gething, 29 L. J. C. P. 110 ; 7 Hubbard, 20 L. J. Q. B. 67. G. B. N. s. 305; Carrt). Montefiore, 5 B. & S. 408; 33 L. J. Q. B, 256. 20-i CHAP. II.] GENERAL PKINCIPLES. *183 lease of that date only coruprised one house ; evidence that the customer pointed out three houses to tlie banker, two of which were contained in another lease, was held admissible. (Jc) But where there is a written contract, the meaning of which as it stands is clear and unambiguous, former correspondence between the parties cannot be considered for the purpose of arriving at the intention of the parties, nor can words deleted from the document, and initialed by the parties as deleted, be used for such purpose, (l) * Where the court has to find a contract in a corre- [*183] spondence and not in one particular agreement formally signed, the whole of the correspondence which has passed must be taken into consideration, (m) Latent Ambiguity.^ — From the admission of sucli evidence, and from bringing the words of the writing into contact with surrounding circumstances, a doubt sometimes arises as to the correct application of the words to the subject-matter of the contract and the objects professed to be described ; this is called a LATENT AMBIGUITY, because it is not apparent upon the face of the contract, but arises from the application of the words to the objects to which they refer. " As this difficulty or ambiguity is introduced solely by the admission of extrinsic evidence of sur- rounding circumstances, it may be rebutted and removed by the production of further evidence of the identity of the objects described, in accordance with the ancient maxim, ' ambiguitas verhorum lateyis verificatione sui^phtur; nam, quod ex facto oritur ambiguum verificatione fadi tollitur.'" (n) But the judgment of the court in expounding a deed must be simply declaratory of what is in the deed ; it has to ascertain not what the party intended as contradistinguished from what the words express, but what is the meaning of the words he has used, (o) And " when the words of any written instrument are free from any ambiguity 1 For admissibility of parol evidence to remove ambiguities, see Section 11., post. (k) In re Boulter, 4 Ch. D. 241. 1 M. & Sc. 345 ; Bac. Max. 23 ; Doe v. (?) Inglis V. Butterby, 3 Ap. Cas. Needs, 2 M. &W. 140; Doe ?'. Hiscocks, 552. 5 M. & "W. 368 ; Raffles v. Wichelhaus, (m) Hussey v. Home Payne, 4 Ap. 33 L. J. Ex. 160; 2 H. & C. 906. Cas. 311. (o) Clayton v. Lord Nugent, 13 L. J. (n) Tindal, C. J., Miller v. Travers, Ex. 365; 13 M. & W. 200. 295 * 184 INTERPRET ATI ON OF CONTRACTS. [BOOK I. in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or to the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, and common meaning of the words themselves, and evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterly inadmissible." {p) Patent Ambiguity. ^ — Where by an ambiguity jjatent on the face of the instrument the intention of the parties is left in doubt, parol evidence is inadmissible to remove it. {q) If a blank, for instance, has been left in a deed, or an important clause or word has been omitted by mistake, and it is doubtful what word was intended to have been used, the defect cannot be cured by extrinsic evidence of what was intended to have been inserted, (r) Evidence merely explanatory of what the party lias [* 184] written is admissible, * but not to show what he intended to have written, (s) But if the ambiguity arises simply from an imperfect expression of the meaning of the ])arty, and can be resolved by reference to the general context of the instru- ment when brought into contact with surrounding circumstances, the court will aid the imperfect expression in favor of the mani- fest intention, and will draw all such plain and reasonable in- ferences from the language and general context of the deed as appear to be necessary to give effect to the obvious meaning, and to carry into execution any matter or act clearly contemplated and intended to be done, it) If an important word has been omitted by mistake, and it clearly appears from the general con- text of the instrument, and the light thrown thereon by surround- ing circumstances and the nature of the transaction, what the 1 For admisbiliility of parol evidence to remove ambiguitie.f, see Section IT., post. (p) Tindal, C. J., Shore i'. Wilson, 9 omnino rececUtaUlera. Bac. Tracts, fol. CI. & Fin. 565, 566; Jones n. Newman, 47; Miller v. Travers, 1 M. & Sc. 347; 1 W. Bl. 60. Clayton v. Lord Nugent, Shore v. AVil- (j) Tindal, C. J., Sanderson v. Piper, son, supra. 7 Sc. 415; 5 Bing. N. C. 431. (I) Sampson v. Easterby, 9 B. & C. (r) Baylis v. Church, 2 Atk. 239 ; 505 ; 4 M. & E. 422 ; Saltoun v. Hous- Hunt®. Hart, 3 Br. C. C. 311. ton, 1 Bing. 433; 8 Moore, 546; Bache (.■!) Divinalio noninierpretatio est quce u. Proctor, 1 Doug. 383. I'.tC CHAP. II.] GENERAL PKINCIPLES. * 185 parties really meant and intended, the courts, in furtherance of the obvious intent, will read and construe the deed as if the word had been duly inserted, (u) Wliere the name of the obligee of a bond was omitted in the obligatory part of an instrument, and it did not consequently there appear to whom the obligor had become bound, but it afterwards appeared from the condition who be was, the bond was held good by reference to the condition, and was construed as if no such clerical error had occurred. (,«) So where the name of the grantor had been omitted in the operative part of a grant, but it clearly appeared from another part of the deed who he was, the deed was held to be valid, and was carried into full operation, (if) A deed, therefore, will not in such cases be construed to be of no effect; namhcnignoe facienclce sunt interpretationes chartarnm, ut res maffis valcat quam pereat. (z) The words " covenant " and " condition," when used in an agree- ment, do not necessarily mean a covenant under seal, or a condition in the strict legal sense of the word, but may, in order to effectuate the intention of the parties, be construed to mean contract or stipulation, (h) Figures and Words at Length. ^ — The import and meaning of words at length cannot be contradicted or altered by figures. Where the figures and the words of a bill of exchange or prom- issory note, for example, disagree, the courts will gi\'e force to the words at length in jDreference to the figures, " because a man is more apt *to commit an error with his pen [*185] in writing a figure than he is in writing a word," (b) Repugnant and Void Limitations of Liability.^ — If a man covenants in his own name for the performance of some particu- lar act or duty, and then seeks by proviso to relieve himself from ALL LIABILITY upon the covenant, the proviso will be rejected 1 Where in a certificate of deposit the amount stated in the body of the cer- tificate is different from that in figures in the margin the former will be taken to be the sum deposited. Payne v. Clark, 19 Mo. 152. 2 See ante, p. *181, American note, 1 5. (ij) Coles V. Hulme, 8 B. & C. 568 ; (;) Piatt on Covenant, o. 2 ; Bac. Phipps 1'. Tanner, 5 C. & P. 488; Jarvis Abr. Covenant ; Fazakerly v. M'Knight, V. "Wilkins, 7 M. & W. 410. 6 Ell. & Bl. 805; 26 L. J. Q. B. 30. (x) Langdon v. Goole, 3 Lev. 21 . (a) Hayne v. Cumniings, 16 C. B. (y) Say (Lord) and Sele's case, 10 n, s. 421. Mod. 46. (I) Sanderson v. Piper, 7 So. 415. 297 * 186 INTEEPKETATION OF CONTRACTS. [BOOK I. as being repugnant to the covenant (c) If two persons make a grant by deed, and it is provided that the deed shall not charge one of the grantors, tlie proviso is void ; for it restrains all the effect of the grant as against him. (rf) If a company authorizes its agent to issue bills of exchange with restricted liability as regards the shareholders, such restriction of liability is repugnant and void, (c) Where by indenture the defendants covenanted for themselves and their successors, churchwardens, &c., with the plaintiff, that they, the said churchwardens, &c., and their suc- cessors, would pay to the plaintiff a certain sum of money by instalments, but it was provided that nothing contained in the said indenture should be deemed or construed to be any personal covenant of or obligation upon the defendants, or in anywise personally affect them, their goods, effects, or estates, but should be binding upon the churchwardens and overseers of the poor of the said parish and their successors for the time being, it was held that, as the defendants could not covenant so as to bind their successors, the covenant was their own personal covenant, and that the proviso, being in direct contradiction to the cove- nant, and utterly inconsistent with any personal liability of any kind whatever upon it, must be rejected as repugnant. (/) But a proviso limiting the liability without destroying it is valid, {g) Limitation of Liability to a Particular Fund. — But when a covenant has been entered into for the payment of money, a proviso by the same deed exonerating the covenantor from all liability upon the covenant is not nugatory if a particular fund is charged with the payment of the money. In the case of covenants to pay an annuity, if the land of the covenantor is charged with the payment, a proviso exonerating the person and personalty of the grantor is good ; and Lord Coke, in commenting upon sect. 220, in Littleton, says : " It appeareth that when in a general grant the law doth give two remedies, the grantor may provide that the grantee shall not use one of them, and so leave the party to the other. But where the grantee hath [*186] but one remedy, there that *remedy cannot be barred ((•) Jenk. Cent. 96, pi. 86. (/) Furnivall v. Coombs, 6 Sc. N. R. (d) Bro. Abr. C'nndiUons, pi. 238. 522; 5 M. & C. 736. («) State Fire Ins. Co., m re, 32 L. J. (g) Williams v. Hathaway, 6 Ch. D. Ch. 300. 644. 298 CHAP. II.] GENERAL PRINCIPLES. *186 by auy proviso; for such a proviso would be repugnant to the grant." Consequently a proviso restricting the liability, good at the beginning, may beconae repugnant and void. As if a man by deed grants a rent for life issuing out of his land, -s^ith a proviso that it shall not charge his person, this is a good pro- viso ; yet if the rent is in arrear and the grantee dies, his execu- tors shall charge the person of the grantor in an action of debt ; for otherwise they would be without remedy ; and therefore the proviso is now become repugnant, and by consequence void, (h) Covenants to pay out of a particular fund do not of necessity imply that the payment is not to be made, unless the fund is raised, and do not, therefore, make the contract conditional and contingent on the realization of the fund. Such a covenant is an absolute covenant to pay the money, unless there is an express limitation of the liability, (i) In the case of simple contracts, however, where the party has/ looked to the anticipated realization of funds by projectors of Si particular undertaking, and not to the personal liability of thci parties with whom he has contracted, his claim is confined to the fund, and he cannot enforce payment from individuals ; and if the project miscarries, and funds are not realized, he has no claim upon anybody or for anything. When it is not said at whose option one of two alternatives is to take place, the rule of law is that the option is in the party who is to do the first act. (^•) Thus a loan for nine or six months gives the borrower the option, (l) A lease for seven, fourteen, or twenty-one years with- out saying at whose option, is at the option of the lessee, (m) What Words amount to a Covenant. ^ — Xo precise form of words is necessary to constitute a covenant. Whatever words 1 Covenants, how they are construed, and particularly whether they are dependent or independent, see U. S. Dig. tit. Coiitriicts, sec. 1046 ; ib. tit. Cove- nants, I.; Council Bluffs Iron Works n. Cuppey, 41 Iowa, 104; Hummel i). Siddal, 11 Phila. 308 ; Adrain v. Lane, 13 S. C. 183 ; "Waldron v. Brazil, &c. Coal Co., 7 111. App. 542 ; Root v. "Wright, 84 N. Y. 72 ; Green •.-. CuUen, 86 K. Y. 246 ; (h) Sir Anthony Mildmay's case, 6 (Jc] Price v. Nixon, 5 Taunt. 338. Co. 41 b. (0 Eeed v. Kilburn Co-operative (i) Bain v. Kirk, 18 L. J. Q. B. 83 ; Soc, L. R. 10 Q. B. 265. Pilbrow V. Pilbrow's Co., 5 C. B. 472 ; (m) Dunn v. Spurrier, 3 B. & P. 399. Sunderland Marine Ins. Co. i'. Kearney, 20 L. J. Q. B. 417. 299 * 187 INTERPRETATION OF CONTRACTS. [BOOK I. are used by a party to a deed, if he intends that they shall oper- ate as a covenant, he will be held liable. («) The words in a contract under seal, " I will be answerable," or " I will be account- able," to A for £10, or " I am content to give A £10 at Michael- mas," amount to a covenant to pay the money ;(o) and words used in the future tense,. unconnected with precedent words of agreement, will in themselves be sufficient to constitute an express covenant, {p) An action of covenant will lie on general words of contract and agreement contained in a deed, [*187] although the parties profess not * to contract " by way of covenant,'' as where they " resolved and agreed, and did, by way of declaration and not of covenant, spontaneously and fully agree ; " and Lord Eldon said it was nonsense to talk of agreeing and declaring (under seal) witliout covenanting. (§) Where a lessee covenanted that he would jilough, sow, manure, tmd cultivate the demised premises, " except tlie rabbit-warren ■and sheep-walk," it was held that, as the parties clearly meant i'jy the exception that neither the warren nor the sheep-walk uhould be ploughed, the exception ought to be construed as a covenant that it should not be done, and that an action of cove- nant consequently was maintainable for the doing of it. {r) So when it was agreed that a lessee should have " conveniens lujnuvi non succidendo arhores," it was held that the lessor might have an action of covenant against him on these words for cutting down the trees, (s) Words of recital in a deed will constitute Shenuan v. Kane, ib. 57. Article on Covenants of Warranty, 6 South. L. Rev. 719. The various covenants in a contract will be deemed dependent, unless the intention of the parties, as gathered from the whole instrument, clearly is to make independent covenants ; and the order of the covenants in the paper is not mate- rial. Hamilton v. Thrall, 7 Neb. 210. {n) Per Ld. Cairns, L. J., Isaacson v. 7 Sc. N. R. 765 ; Williams u. Burrell, 1 Harwood, L. R. 3 Ch. 225; 37 L. J. Ch. C. B. 429; James v. Cochrane, 21 L. J. 209. Ex. 229 ; Mason v. Cole, 4 Exch. 379 ; (o) 3 Leon. 119, pi. 169; Brice o. Farrall «. Hilditch, 5 C. B. N. s. 853; 28 Carre, 1 Lev. 47; 1 Keb. 155. L. J. C. P. 221; Marryat r. Marryat, 28 (p) Bret V. Cumberland, Cro. Jac. Bea. 224; 29 L. J. Ch. 665; .Tacksou d. 399. Korth-Eastern Ry., 7 Ch. D. 573. iq) Ellison!,'. Bignold, 2 J. &W. 510; (;-) Duke of St. Albans v. Ellis, 16 Wood V. Copper Miner's Co., 7 C. B. East, 532. 906 ; Sampson v. Easterby, 9 B. & C. {s) March 9, pi. 22 ; Dy. 19, b. pi. 514; Courtneyj;. Taylor, 6 M. & (.!. 851; (115); Stevin.son's case, 1 Leon. 324. 300 CHAP. II.] GESEKAL PKINCIPLES. , * 188 an agreement between the parties upon which an action of cove- nant may be maintained, where it appears to be the intention of tlie parties tliat tliey should do so. {t) Thus, where a termor for ninety-nine years, if three lives should so long continue, recited his interest, and tliat one life was in being, and assigned his term, it was adjudged that this recital amounted to a covenant that the life continued, (u) So the recital in a deed of a pre- vious agreement to do a certain act amounts to a covenant in the deed for the performance of it ; for the recital operates as a sol- emn confirmation of the " agreement and intent precedent." (x) But a recital does not necessarily imply a covenant ; and whether it does so or not in each case depends on what is to be collected as the intention of the parties from the whole instrument, (y) Thus where a marriage settlement contained a recital of an agreement that after-acquired property of the wife should be settled, and the corresponding operative part was a covenant by the husband alone, it was held that the covenant was not con- trolled by the recital, and was not binding on the wife, (s) When there is an acceptance of a trusteeship under seal, that does not amount to a covenant to perform the duties of the office, (a) Words of Proviso and Condition may be construed as an * Express Covenant, when such a construction is [*188] necessary to give effect to the apparent intention of the parties. (&) Thus, where a conveyance was made by the plaintifi of an incorporeal right to the defendant, provided that out of the first profits the defendant should pay the plaintiff £500, it was held that an action of covenant might be maintained on these words of proviso for the non-payment of the money, (c) Where a lease executed by the lessor and lessee contained a covenant on the part of the lessee to maintain and repair a farmhouse and premises, "the said farmhouse and buildings being previously put into repair " by the lessor, it was held that these words amounted to an absolute covenant on the part of the lessor to {t) Gawdy, J,, Severn & Clarke's (;/) Ivens i). Ehves, 24 L. J. Ch. 249. case, 1 Leon. 122; Aspdin v. Austin, 5 (s) Young v. Smith, L. K. 1 Eq. 180. Q. B. 683; Lay v. Mottram, 19 C. B. {n) Holland v. Holland, L. R. i Ch. N. s. 479. 449; 38 L. J. Ch. 398. (m) Holies V. Carr, 3 Swanst. 648; 2 (J) Brooks s. Drysdale, 3 C. P. D. 52. Freena. 3. (c) Clapham v. Moyl, 1 Keb. 842, {x) Barfoot v. Freswell, 3 Keb. 465. 897. 301 * 189 INTERPRETATION OF CONTRACTS. [BOOK I. put the house into repair, and not merely to a qualification of the covenant of the lessee, (d) So where a lease was granted on condition that the lessee should keep and leave the demised premises at the end of the term in as good plight as he found them, or that he should not exercise thereon a particular trade or business, (c) it was held that an action of covenant would lie for a breach of this condition. Where, however, the proviso or condition is by way of qualification of the covenant, or defea- sance of the deed or of the estate and interest thereby created, and not in the nature of an agreement, as if a lease be granted, provided .and on condition that the lessee collect and pay the rents of the other houses of the lessor, an action of covenant is not maintainable. If a lessee for years covenant to repair, "pro- vided always and it is agreed that the lessor shall find great tim- ber,'' &c., a covenant is created on the part of the lessor to find the timber by reason of the word " agreed ; " but if the lessee had covenanted to repair, provided the lessor found the timber, with- Ciut the word " agreed," the proviso would not have amounted to 1), covenant on the part of the lessor, but to a qualification only of the covenant of the lessee. (/) Covenants by Implication of Law. ^ — "Where a lessee cove- nanted that he would at all times during the continuance of his lease fold his flock of sheep which he should keep upon the demised premises upon such parts where the same had been usually folded, it was held that this amounted to a covenant to keep a flock of sheep upon the premises, and that it would con- sequently be no answer to an action upon the covenant for the defendant to say that he kept no sheep, and therefore [*189] had none to fold, {g) And where a * landlord demised certain limestone quarries and limekilns to a tenant, who covenanted, amongst other things, that he would, at all times and seasons of burning lime, supply the lessor and liis 1 See Crouch v. Fowle, 9 N. H. 219, 32 Am. Dec. 350; and note by A. C. Free- man, ib. 353. (d) Contiock v. Jones, 3 Exch. 233; Geery v. Reason, Cro. Car. 128; Simp- 18 L. J. Ex. 204. son v. Titterell, Cro. Eliz. 242; Wolve- {«) Hodson V. Coppard, 30 L. J. Ch. ridge v. Steward, 3 M. & Sc. 566. 20; 29 Beav. 4. \(j) Webb v. Plunimer, 2 B. & Aid. (/) 1 KoUe Abr. 518; Bac. Abr. Cov. 749. 302 CHAP. II.] GENERAL PRINCIPLES. * 189 tenants with lime at a stipulated price, for the improvement of their lands and the repaii' of their houses, it was held that this amounted to a covenant to burn lime at such seasons, and that it was no defence to plead that there was no lime burned on the premises out of which the lessor could be supplied. (Ji) If two persons covenant together that it shall be lawful for the one to hold possession of the other's property for a certain time, the law infers therefrom an agreement that he shall not detain it for a longer time, but shall then give it up to the owner ; if he de- tains it beyond that time it is a breach of covenant, (i) Where a debt is assigned with the usual power of attorney to sue in the assignor's name, there is an implied covenant by the as- signor not to thwart the remedy of the assignee against sucli debtor, (k) Bonds and Obligations. — ISTo precise form of words is neces- sary to create a bond or obligation. Any memorandum in writ- ing under seal, acknowledging a debt or denoting the intention of the party to bind himself for the payment of a sum of money, will oblige him as effectually as the most formal words he can make use of — such, for example, as " I, A B, have borrowed £10 of C D," or "Memorandum that A owes B £10," or "I have agTeed to pay J S £19 ; " for although the words " teneri ct firm- iter oUigari " are generally put into every common bond, yet when any other words purport the same effect and the same sense in writing, the law will construe them to have like efficacy. Every word which proves a man to be a debtor, if it be under seal, will charge him with the payment of the monej'. (F) If no time is limited in a bond for the payment of money acknowl- edged to be due, such money is due immediately, and payable on demand. If it be for the performance of an act on the 29th of February next following, and the next February has only twenty- eight days, it has been said that the party is not bound to do the act until the next leap-year, when February has twenty-nine days. (■»(,) (h) Earl Shrewsbury v. Gould, ib. case, 1 Leon. 25 ; Bac. Abr. p. 804 ; 487. Sawyer v. Mawgridge, 11 Mod. 218 ; 1 (i) Randall v. Lynch, 12 East, 182. Rolle Abr. 146; Watson v. Snead, Vent. {k) Gerard v. Lewis, 36 L. J. C. P. 238. 173; L. E. 2 C. P. 305. (m) 1 Leon. 101, pi. 132. (I) Core's case. Dyer, 22 b; Bedow's 303 * 190 IXTEEPEETATION OF CONTEACTS. [BOOK I. Dependent and Independent Covenants. — " There are,'' ob- serves Lord Mansfield, " three kinds of covenants : first, sucli as are called mutual and independent, where either party may recover damages from the other for the injury he may [* 190] have received * by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff; secondly, there are covenants which are conditional and dependent, in which the performance of one depends on the prior performance of another, and, therefore, till this prior condition is perfcsrmed, the other party is not liable to an action on his covenant ; there is also a third sort of covenants, which are mutual conditions to be performed at the same time, and in these, if one party was ready and offered to perform his part, and the other neglected or refused to perform his, he who was ready and offered has fulfilled his engagement, and may maintain an action for the de- fault of the other ; though it is not certain that either is obliged to do the first act." (n) Conditions Precedent.^ — Representations and stipulations in a 1 Conditions, how they are construed and enforced, and particularly whether they are precedent or subsequent, see U. S. Dig. tit. Contracts, sect. 991 ; Thomp- son V. Houston, 31 Tex. 610; Kaahle v. Sneed, r,'J Pa. St. 3SS; Russell v. McCor mick, 45 Ala. 587; Henry County v. Winnelia™, &c. Drainage Co., 5'2 111. 4j4 Clough V. Baker, 48 N. H. 254; Eichards v. Schlegelmieh, 65 N. C. 150; Breaux V. Lauve, '2t La. Ann. 179; Arnold v. Elver E. E. Construction Co., 35 Iowa, 99 Turner r. liak.r, 30 Ark. 186; Chicago, &c. R. R. Co. v. Chicago Coal Co., 79 111 121; Booth ?'. Cleveland Rolling Mill Co., 74 N. Y. 15; Eamsey i-. Edgefield, &c. R. R. Co., 3 Tenn. Ch. 170; Stockton Savings, &c. Soc. v. Hildreth, 53 Cal. 721 Waldron v. Brazil, &c. Coal Co., 7 111. App. 542; Sennett f . Shehan, 37 Minn 328; Front Street, &c. R. R. Co. v. Butler, 50 Cal. 574. "Provided that" and "provided also" do not always constitute a condition. Whether there is a condition, and whether one is precedent or subsequent, is to be determined from the intent of the parties as indicated fi'om the whole language used, and from the nature of the act required. Schwoerer v. Boylston Market Assoc, 99 Mass. 285. Courts are disinclineil to construe the stipulations in a contract to do certain things within a given time in consideration of the payment of money by the other party, as conditions precedent, unless compelled to do so by the express language of the contract. Front Street, &c. R. R. Co. v. Butler, 50 Cal. 574; Hollis V. Chapman, 36 Tex. 1. Where the contract is an entirety, and there are in it no means of apportion- (»i) Kingston v. Preston, cited 2 Curling, 3 Sc. 754; Thorpe v. Thorpe, 1 Doug. 689; Tindal, C. J., Stayers v. Salk. 171 ; Peeters^. Opie, 2 Sautid. 350. 304 CHAP. n.J GENEEAL PRINCIPLES. * 190 contract as to something future to be done often constitute condi- tions precedent to be performed by one party before any lia- bility attaches to the other. Whether particular stipulations are to be conditions precedent or not depends upon the intention of the parties, to be gathered from the language of the particular instrument, (o) Where a tenant covenanted to repair, the land- lord, " finding, allowing, and assigning timber sufficient for such reparations to be cut and carried by the lessee," it was held that the finding and assigning the timber by the lessor was a condition precedent to the liability of the lessee to repair ; (jp) but if the landlord is ready and willing, and offers to find and allow the timber, there is a sufficient performance of the condi- tion on his part, {g) And if the covenant has annexed to it a mere license to take timber for the purpose of reparation, the license does not amount to a qualification of the covenant, so as to exonerate the tenant from his liability to repair in case there should happen to be no timber on the demised premises fit for reparation, (r) Whenever it appears to have been tlae intention of the parties that performance of one stipulation should not be a condition precedent to the performance of another, effect ment, and nothing can be found aliunde to establish an apportionment or to show the relative or absolute values of the several conditions, no action can he maintained to recover the consideration, if unpaid, nor upon a quantum meruit, until all the conditions are performed; and if the consideration has been paid in advance, and only some of the conditions are performed, the entire consideration can be recovered back; yet to this conclusion in any given case, the law reluctantly comes, and only when it is perfectly clear that by no construction or evidence can there be any apportionment or determination of values. Missoui'i, &c. E. K. Co. V. Fort Scott, 15 Kan. 435. Generally, if a condition precedent has not been complied with, no recovery can be had on a quantum ineruit ; otherwise, where the defendant by completing the contracts himself puts it out of the power of the plaintiff to do so. Escott v. White, 10 Bush, 169; see Darland v. Greenwood, 1 McCrary C. Ct. 337; Allen v. Pennell, 61 Iowa, 537; Hollis v. Chapman, 36 Tex. 1. Where the act of a party for whose benefit conditions precedent attach is relied on as an excuse for non-performance, it must be the proximate and not the remote cause of the failure to perform, and be of such a character as to render performance impossible, or to induce the belief that it was waived, or that if attempted it would not be accepted. Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 638. (o) Havelock f. Geddes, 10 East, 555; (?) Martyn v. Clue, 18 Q. B. 681. Seegar v. Duthie, 8 C. B. N. s. 45, 72; (r) Dean & Chapter of Bristol v. 30 L. J. C. P. 65. Jones, 28 L. J. Q. B. 201; 1 El. & El. [p] Thomas v. Cadwallader, Willes, 484. 496; and see N"eale v. EatclifFe, 15 Q. B. 20 305 * 191 INTERPKETATION OF CONTRACTS. [BOOK I. will be given to such intention ; (s) but where the intention is to rely on a previous performance, and not on the remedy for non-performance, performance is a condition precedent, (t) Where a landlord granted all the coal lying and being [*191] * within and under certain premises, and the grantee covenanted to pay so much for every acre of coal found within or under the said premises, and to pay ^40 a year whether the whole of an acre should be gotten or not, it was held that the finding of coal was not a condition precedent to the landlord's right to receive the .£40 a year, [u) The word " upon " may mean lefore the act done to which it relates, or simvltaneously ivith the act done, or after the act done, according as reason and good sense require the interpretation with reference to the context and the subject-matter of the instrument, {x) Where a singer engaged to be present for rehearsal six days before appearance, but did not, it was held that this was not a breach of a condition precedent, (y) as it did not go to the root of the contract ; but where the plaintiff was, through illness, quite unfit to undertake the earlier performances promised, it was held that the defendant was excused from his part of the contract, as the plaintiff's inability to perform did go to the root of the matter. (2) Waiver of Conditions Precedent. — Where a stipulation in the nature of a condition precedent has been partially performed, it ceases to be available as a condition, and becomes a stipulation by way of agreement, for the breach of which compensation must be sought in damages, {a) Independent Covenants and Promises.^ — " If there be a day set for the payment of the money, or for the doing of the thing which one promises and agrees to do for another thing, and that 1 See ante, p. * 1S6, American note. (s) Christie v. Borelly, 7 C. B. x. s. (y) Bortini v. Gye, L. R. 1 Q. B. D. 561; 29 L. J. C. P. 153 ; Dodd v. Pons- 183. ford, 6 C. B. N. s. 32i. (r) Poussard v. Spiers k Pond, 1 Q.B. (() Roberts v. Brett, 18 C. B. 573 ; 6 D. 410. C. B. N. s. 611 ; 23 L. J. C. P. 323; 34 ib. {a) Belm v. Bumess, 3 B. & S. 753 ; 241; 11 H. L. Cas. 337. 32 L. J. Q. B. 204; Pust v. Dowie, 32 {u) Jowett 11. Spencer, 1 Exch. 649. L. J. Q. B. 179; 5 B. & S. 20, 33. (.-) Reg. V. Humphrey, 10 Ad. & E. 335, 369. 306 CHAP. II.] GENERAL PRINCIPLES. * 192 day is to happen, or may happen, before the other thing can be performed, an action may be brought for the money before tiie thing be done ; for it appears that the party relied upon his remedy upon the contract," and not upon a previous or concur- rent performance, (i) If in a contract of hiring and service it is stipulated that the hire shall be paid before the time appointed for the rendering of the service, there the servant may bring an action for the money before the service lias been performed, (c) So if there are mutual covenants for the sale and purchase of an estate, and a fixed day is appointed for the payment of the pur- chase-money, and another and later day for the conveyance of the property, the money must be paid on the day appointed, although the purchaser has not got * the [*192] estate, {d) Where a purchaser agreed to pay for goods, not on, but after, delivery, it was held that actual deliveiy was precedent to the right of the vendor to sue for the price, unless the defendant had refused to receive the goods, and by his own act had prevented the performance of the contract by the plain- tiff, (e) So where a vendor agreed to deliver forthwith fifty tons of iron for the price of £9 per ton, the price to be paid in cash in fourteen days, it was held that the delivery of the iron was a condition precedent to the payment of the price, and the vendor not having delivered the goods within the fourteen days, that the defendant was discharged from liability. (/) If a deed pur- ports and professes to grant and convey an interest, the cove- nants of the grantee immediately relating to that interest, and founded on the grant thereof, are conditional and qualified, so that the liability of the grantee upon them is dependent upon the interest, or some portion thereof, being actually transmitted to him. But this is not the case with respect to the covenants of the grantor of that interest ; his covenants are independent and unconditional; and he is consequently liable upon them, (h) Holt, C. J., Thorp v. Thorp, 12 (d) Sibthorp ». Brunei, 3 Exch. 826 Mod. 461 ; Parker i-. Eawlins, 12 Moore, Yates v. Gardiner, 20 L. J. Ex. 327 629; 4 Bing. 280 ; Judson v. Bowden, 1 Pordage v. Cole, 1 "Wrns. Saund. 319 h E.xch. 166 ; 17 L. J. Ex. 172 ; Terry v. Mattock v. Kinglake, 10 Ad. & E. 50 Duntze, 2 H. Bl. 389 ; Cutter v. Bower, Spiller v. Westlake, 2 B. & Ad. 157 11 Q. B. 973; Dicker v. Jackson, 6 C. B. Walker v. Han-is, 1 Anstr. 245. 114. (e) Ripley v. M' Clure, 4 Exch. 357- (c) Pool's case, 1 Wms. Saund. 320 b. (/) Staunton v. Wood, 16 Q. B. 638. 307 * 193 INTEEPEETATION OF CONTRACTS. [BOOK I. whether the interest he professes to convey does or does not pass, (g) Covenants founded on a Mutuality of Obligation and Liability- must be mutually binding upon the parties to them. If, therefore, one of several parties to a deed inter partes founded on mutual covenants neglects to execute the deed, the contract is not bind- ing on the others who have executed it. (h) And if a deed of covenant inter partes, originally binding upon all, becomes inef- fectual and inoperative as to one by matter ex post facto, such as bankruptcy, the deed is wholly void. (?') Where there are mutual and dependent covenants on the part of directors of companies and subscribers to the capital thereof, and the directors do not execute the deed, the subscribers will not be responsible upon their covenants. (^•) But where the covenant is not founded upon some interest to be created by deed, or upon a mutuality of obligation and liability, the general rule of law is that where a party has a covenant made to him, and he in return is to make a covenant, he may sue on the covenant made to him, even though he himself has not executed the deed. Thus, where a mortgage deed containing cross covenants between [*193] mortgagee and mortgagor was executed by the * mort- gagee alone, it was held that the latter was neverthe- less liable upon his covenants. (T) Implied Stipulations. — If a party enters into an arrangement which can only take effect by the continuance of a certain exist- ing state of circumstances, there is an implied engagement on his part that he will do nothing of his own motion to put an end to that state of circumstances under which alone the arrangement can be operative, (jn) But where two parties mutually agree for their mutual benefit that one shall be sole agent for the other to sell goods in a particular town, there is no implied condition that the business itself shall be continued, (w) (g) 'Walter v. Dean, &c. of Norwich, (k) In re Dover, Hastings, &c., 18 1 Brownl. & Goldes. 21; Owen, 136; Jur. 52. Jones V. King, 4 M. & S. 188; Northcott [1) Morgan v. Pike, 14 C. B. 473. V. Underhill, 1 Eaym. 388. (m) Stirling v. Maitland, 5 B. & S. {h} Antramo). Chace, 15 East, 212 ; 840; 34 L. J. Q. B. 1; Mclntyre v. Marsh v. Wood, 9 B. & C. 665. Belcher, 14 C. B. N. s. 654; 32 L. J. (i) Kearsey v. Carstairs, 2 B. & Ad. C. P. 254. 726. (h) Rhodes v. Forwood, 1 Ap. Cas. 256., 308 CHAP. II.] GENERAL PEINCIPLES. * 194 ITsual Covenants. — It is a very frequent stipulation in an agreement for a lease that the lease shall contain all " usual cove- nants," and the courts have had frequently to decide what is or is not a " usual covenant.'' Thus it has been held that covenants to pay rent, (o) to repair, {p) for quiet enjoyment, (g) and to pay rates and taxes when net rent is fixed, (r) are usual cove- nants. And, upon the other hand, that covenants not to underlet or assign, {$) not to carry on a particular trade, {t) axe, not "usual." In mining leases it has been held that a proviso for re-entry upon a forfeiture by bankruptcy or assignment, (ii) and a covenant that the lease should determine when the mines could not be worked to a profit, (x) are not " usual" Computation of Time. ^ — • Whenever a person is allowed a specified number of months for the delivery of an abstract of title, the payment of a sum of money, or the performance of any par- ticular act or duty, the month is understood to be a calendar and not a lunar month, unless it appears from the general context of the contract that a lunar month was intended, {y) When time is to be computed from a particular day, or from the day of an act being done or the happening of a particular event, such day is to be excluded from the computation ; for our law rejects frac- tions of a day, and an act done in the compass of it is not refer- able to one portion of the day more than another, so that the act is not considered to be passed and done with until the day has passed. * When, therefore, goods were sold [*194] on the 5th October to be paid for in two months, it was held that the day on which the contract was made was to be excluded from the computation, and that an action for the price I As to modifieatlon of contracts in respect to date and time, see Section II. post. (o) Taylor v. Horde, 1 Burr. 60. (t) Propert v. Parker, 3 Myl. & K. ip) Kendall v. Hill, 6 Jur. K. s. 968. 280; and see Van v. Corpe, 3 liyl. & K. (g) Davidson's Precedents, vol. 5, pt. 269; Doe d. Marquis of Bute v. Guest, 1, p. 51, 3d ed. 15 M. & W. 160. (r) Bennett v. Womack, 7 B. & C. («t) Hodgkinson v. Crowe, L. E. 10 627. Ch. 622. (s) Smith and Soden's Landlord and (x) Strelly v. Pearson, 15 Ch. D. 113. Tenant, 2d ed. p. 87; Hampshire v. (y) Lang v. Gale, 1 M. & S. Ill ; Wickens, 7 Ch. D. 555 ; Buckland v. Jolly v. Young, 1 Esp. 186 ; Corkell v. Papillon, L. E. 2 Ch. 67. Gray, 6 Moore, 486 ; 3 B. & B. 186. 309 * 194 INTERPRETATION OF CONTKACTS. [BOOK I. could not be maintained until after the expiration of the 5th of December, (z) In considering whether, upon a contract to do an act or enter into an engagement at or for a definite time from a certain date, the time is to be reckoned exclusively or inclusively of the last day, it is impossible to lay down any fixed rule ; each case must depend on its own circumstances and subject-matter, (a) But in general the last day is to be included. Thus, where a lease was granted for twenty-one years from the 25th of March in a par- ticular year, the lease was held to continue until the end of the 25th of March of the last year. (6) So where a bankrupt was to be protected from the 16th until the 29th of July, it was held that tlie whole of the 29th was included, (c) So where goods were sold to be paid for in two months' time, it was held that the first day, the day of the sale, was excluded, and the last day included, {d) And where a patent contained a proviso that the specification was to be filed within one month's time next after the date thereof, the day on which the letters patent were granted was held to be excluded, (e) Again, where a security not to do a par- ticular thing was to be given within six months from a testator's death, the last day of the six months was held to be included. (/) And where by a policy of insurance goods were insured' against fire from the 14th of February until the 14th of August, it was held that the whole of the latter day was within the protection of the policy. (^) Of the Interpretation of Contracts made in one Country and enforced in Another. ^ — All contracts made in one country con- 1 As to the doctrine of the law of place in its application to contracts, the principles for reconciling the conflict of laws, and the question whether the law of the jurisdiction of the place where the contract is made, of that where it is to be performed, or of that where it is put in suit, should govern the construction, see 2 Pars. Contr. 567; Story, Confl. of L. 265; 2 Kent, Com. 575-588. Law of place as to interest, see Western Trausp, Co. v. Kilderhouse, 87 N. Y. 430. («) Webb V. Fairmaner, 3 M. & W. (c) Bellhouse v. Mellor, 4 H. & N. 473; Young v. Higgon, 6 ib. 49; Mer- 116; 28 L. J. Ex. 141. cantile Marine Insurance Co. v. Tither- (d) Webb v. Fairmaner, 3 M. & W. ington, 34 L. J. Q. B. 11. 473. («) Pugh V. Duke of Leeds, 2 Cowp. (c) Watson v. Pears, 2 Campb. 294. 714. (/) Lester v. Garland, 15 Ves. 248. (ft) Ackland v. Lutley, 9 Ad. & E. {g) Isaacs v. The Royal Insurance 879. Co., L. R. 5 Ex. 296; 39 L. J. Ex. 189. 310 CHAP. II.] GENERAL PRINCIPLES. * 194' cerning land and houses and immovable property situate in another country must he interpreted according to the law of the The general doctrine is that if a contract binds parties to performance within any particular jurisdiction, the law and usage of that jurisdiction are to be followed in construing it ; if it does not, then the law and usage of the place where it is made govern. Thompson v. Ketcham, 8 Johns. 189 ; Jacks v. Nichols, 5 N. Y. 178; Bowen v. Newell, 13 N. Y. 290 ; Curtisu. Leavitt, 15 N. Y. 9 ; Everett v. Ven- dryes, 19 N. V. 436; Cutler v. Wright, 22 N". Y. 472 ; Story, Confl. L., sects. 270, 280, 282. See further, U. S. Dig. tit. Contracts, sect. 2235 ; applications of the general doctrine to question of form, execution, &c., ib. sect. 2244; to questions of construction and effect, ib. sect. 2255; of validity, ib. sect. 2268; of performance, ib. sect. 2283 ; peculiar to negotiable instruments, ib. sect. 2288 ; or to remedies, ib. sect. 2295. Recent cases are : Matters bearing upon the execution, interpretation, and validity of a contract are determined by the law of the place where it is made ; matters connected with its performance are regulated by the law of the place of performance ; matters respecting the remedy depend upon the law of the place where the suit is brought. Scudder v. Union Kat. Bank, 91 U. S. 406. Compare Paysou V. "Withers, 5 Biss. 269 ; Laird v. Hodges, 26 Ark. 356 ; Partee v. Silli- man, 44 Miss. 272 ; Williams v. CaiT, 80 N. C. 294 ; Faulkuer v. Hart, 44 N. Y. Superior Ct. 471 ; Denis v. Faulkner, 22 Kan. 89. The question, what law governs a contract, depends, theoretically, at least, upon the intention of the contracting parties. An agreement to perform an act at a particular place is made with reference to the law of that place, and an agreement to peiform an act without designating a place for performance, is presumed to be made with reference to the law of the place at which the agreement was made; and these presumptions are conclusive. Hyatt v. Bank of Kentucky, 8 Bush, 193. One State cannot dictate to another how to construe a contract sought to be enforced within its limits ; a reasonable limitation of the rule of comity is that no community shall .suffer prejudice by its comity. Lewis v. Woodfolk, 58 Tenn. 25. Compare Union, &c. Exp. Co. v. Erie Ky. Co., 37 N. J. L. 23; Mineral Point E. E. Co. V. Barron, 83 111. 365; Cubbedge v. Napier, 62 Ala. 518. It is only in ascertaining the rights and liabilities of the parties that the law of the place where the contract is made governs ; the remedy is governed by the law of the former. If the liability of the party, ascertained by the law of the State where it was made, is equitable, it can be enforced, where legal and equitable remedies are distinct, only in equity, notwithstanding it might, in the State where made, have been enforced at^aw. Burchard v. Dunbar, 82 111. 450. The laws which subsist at the time and place of the making of a contract, if it is to be there performed, enter into and form a part of the contract ; and this is so whether such law affects its validity, construction, enforcement, or discharge. Roberts v. Cocke, 28 Gratt. 207; s. P. Champion v. Wilson, 64 Ga. 184. Where a contract is by its terms to be performed in a State other than that in which it is made, the law of the State in which it is to be performed must govern its construction and effect. Dickinson v. Edwards, 58 How. Pr. 24 ; Waldron v. Eichings, 9 Abb. Pr. N. s. 359 ; Dunn v. Welsh, 62 Ga. 241; Downer v. Chese- brough, 36 Conn. 39. A contract made in one State to be fulfilled there, subject to ratification in another State, is, when ratified, to be interpreted by the laws of the first State. Golson V. Ebert, 52 Mo. 260. To nearly same effect, Hildreth v. Shepard, 65 Barb. 265. Where a contract is made in one State to be partly performed in that State and 311 * 194 INTERPEETATION OF CONTRACTS. [BOOK I. country in which the property is situate, the " lex loci rei dim',' and not by the " Ux loci conti-actiis," or the law of the country partly in others, the construction of the contract as a whole is governed by the law of the place where it is made ; the law of the place of performance does not apply. Morgan v. New Orleans, &c. R. R. Co., 2 Woods, 244. Although a contract made in another State for the loan of money, is govenied by the laws of the State where made, yet a conveyance of lands to secure the pay- ment of the loan, though executed in another State, is detei'mined by the laws of the State where the lands lie. Klinck v. Price, 4 W. Va. 4; Morgan v. New Orleans, &c. K. Pi. Co., 2 Woods, 244. Compare Oregon, &c. Trust Co., v. Rath- bun, 5 Sawyer, 32 ; Cantu v. Bennett, 39 Tex. 303; Sands v. Smith, 1 Neb. 108; Mills V. Wilson, 88 Pa. St. 118; Richardson v. Draper, 23 Hun, 188 ; Dial ». Gary, 14 S. C. .173. In determining whether a conveyance of real estate contains a covenant that runs with the land, the lex rci sitce governs. Fisher v. Parry, 68 Ind. 465. The interest to be paid under a contract is, as a general rule, to be determined by the law of the place in which the parties in good faith intended it to be per- formed. Campbell v. Nichols, 33 N. J. L. 81. As to a contract in relation to personal property situated at the date thereof in a foreign jurisdiction, the Ivx loci goveins; thus, a contract made in Michigan for the purchase of a piano, construed by the courts of that State to be a mere bail- ment giving the buyer no right to mortgage it, will be so construed by the courts of Illinois upon his removing to this State and attempting to mortgage it. Waters v. Cox, 2 111. App. 129. Compare Muniford v. Canty, 50 111. 370; Drew v. Smith, 59 Me. 393; Howenstein v. Dames, 5 Dill. C. Ct. 482; Hunt v. Jones, 12 E. 1. 265; Hibernia Bank v. Laoombe, 21 Hun, 166. When a contract is made by a common carrier in one State to transport goods from that State into another, and the goods are lost, the rights of the parties are governed by the law of the State in which the loss happens. Gray v Jackson 51 N. H. 9. It is important to remember that whenever the law of another jurisdiction is the proper guide, it must be affirmatively .shown ; but the practical duty of mar- shalling the proper evidence is much alleviated by the principles of judicial notice and presumption applicable to foreign laws. The general rule is settled that the courts of one State do not take notice of the statutes of another State ; see cases cited 5 U. S. Dig. 487, sect. 102. Thus they have refused to take notice of the rate of interest allowed in another State {CavendeT v. Guild, 4 Cal. 251; Dorsev v. Dorsey, 5 J. J. Marsh. 280); even where it was stated in an official table published as an appendix to the State .statute book, pursuant to an act of the le. Allcott, 6 "S. Y. 64). Thus where it was the established usage of a waichouse- keeper to deliver property to houses in good standing, relying upon their personal credit for the payment of the storage, it was hidd that the right of lien was waived, and that it must be presumed that plaintitfs contracted on the same terms as others in like situations, until the contrary is shown. Dunbar v. Pettcc, 1 Daly, 112. Where, in a suit for lo.ss by fire of a quantity of rice deposited at a mill to be beaten, it was proved that the general custom of the mill was to give a receipt to the owner of rice delivered there, ex]iressing the quantity and terms of deposit, the court held, in the absence of proof to the contrary, that the presumption was that a recei)it was given. Ashe v. l'>e Piosset, 8 Jones L. 240. Where it was the usage of a hotel to deposit all letters left at the bar in an urn kept for that pur- pose, whence they were sent, almost every fifteen minutes throughout the day, to the rooms of the different guests to whom they were directed, it may be presumed that a letter addressed to one of the guests, and left at the bar, was received by him (Dana v. Kemble, 19 Pick. 112); and, generally, proof that a letter was deposited, duly addressed and prepaid, in a post-office, raises a presumption that it was delivered according to postal irsages (Briggs v. Hervey, 130 Mass. 186). If it has been customary to choose but three selectmen in a town, it will be presumed that three was the number chosen (Jay v. Carthage, 48 Me. 353 ) ; so the usage (a) Macdonaldv. Longbottom, 1 Ell. (c) Horsey v. Graham, L. E. fi C. P.; & Ell. 977 ; 28 L. J. Q. B. 293 ; 29 ib. 39 L. J. C. P. 68. 256. {d) Woolam v. Hearn, 2 W. & T. (i) Mumford v. Gething, 7 C. B. N. s. Lead. Cas. in Eq., 2d ed., p. 404 ; Laver 305 ; 29 L. J. C. P. 105. v. Fielder, 32 Beav. 1. 329 *203 INTEKPKETATION OF CONTRACTS. [BOOK I. matter of the coutract in the place and neighborhood where the contract was made, are impliedly annexed to the written language of two towns for fifty j'ears as to the mode of settling the yearly expenses of a bridge, was held to raise a presumption that that was the contemporaneous con- struction of their rights when the usage commenced, or was presumptive evidence of a new and original agreement. Cambridge i". Lexington, 17 Pick. 222. Where a drain was excepted in a sale, it was presumed to have previously existed by usage, or to have been excepted in previous deeds. Bergen v. Bennett, 1 Cai. Cas. 1. Those who navigate steamboats on the Ohio River are presumed to know the usage of the river in respect to boats running in opposite directions, and are bound by it. Barrett v. Williamson, 4 JlcLean, 597. Upon the principle that the courts know judicially the general course of the ordinary transactions of human life, they will take notice of the meaning of ordi- nary abbreviations, such as "adm'r" for administrator (Moselyti. Mastin, 37 Ala. 216); or of the customary abbreviations of christian names (Steplien i). State, 11 Ga. 225; Weaver v. McElhenon, 13 Mo. 89) ; of the sex of a party from the name and the use of the pronoun "she " (O'Boyle v. Brown, Wright, 465); of the ordi- nary modes of transacting commercial business within the State (Bronson v. Wiman, 8 N. Y. 182, 10 Barb. 406); of the great lines of travel, and their connec- tion, and the usual course of transportation throughout the country (Smith v. New York Central K. R. Co., 43 Barb. 225; Maghee v. Camden, &c. R. R. Co., 45 N. Y. 514); of the usual length of Atlantic voyages (Oppenheim v. Wolf, 3 Sandf. Ch. 571) ; of the notorious course of trade between two ports (The Mersey, Blatchf Prize Cas. 187); of the peculiar nature of and usual mode of conducting lotteries (Salomon v. State, 28 Ala. 83); of the notorious connection between allied trades, such as those of an ambrotypist, a daguerrotypist, and a photo- grapher (Barnes v. Ingalls, 39 Ala. 193) ; of the recurrence of Sundays and great festivals, such as Christmas, and the commercial usage to observe them, so that if a note falls due on such day it should be protested on the day previous (Sasscer v. Farmers' Bank, 4 Md. 409); of the character of the circulating medium and popular language in reference to it (Lampton v. Haggard, 3 T. B. Mon. 149; Jones V. Overstreet, 4 ib. 547); of the legal coins made at the mint of the United States, pursuant to law, and of foreign coins made current by law (United States V. Burns, 5 McLean, 23; McButt v. Hoge, 2 Hilt. 81); of the fact that gold coin was for a time disused as money in the business of the country, and became an article of merchandise and traffic (United States v. American Gold Coin, 1 Woolw. 217); of the prices of ordinary labor (Bell v. Barnett, 2 J. J. Marsh. 516); that a freemasons' lodge is a charitable or eleemosynary body (Burdine v. Grand Lodge, 37 Ala. 478, 1 Ala. Sel. Cas. 385). But the courts have refused to take notice that " St. Louis, Mo.," in the date of a contract, means Si. Louis in the State of Missouri (Ellis v. Park, 8 Tex. 205); or that a note expressed to be payable in " New Orleans, La.," is meant to be payable in the State of Louisiana (Russell v. Martin, 15 Tex. 238); or of what railroads run through a particular county (Logansport, &c. R, R. Co. v. Caldwell, 38 111. 280); or to take notice of tho time which railroad cars require for running between diff'erent places, and the frequency of mails between them (Wiggins v. Burshham, 10 Wall. 120); or of the length of time required by an express company in carrying a sum of money from one 'speci- fied town to another (Rice v. Montgomery, 4 Biss. 75); of a custom for a locator to take one-third of the land for his services (Louges v. Kennedy, 2 Bibb, 607); or of what are the fair and usual commissions on acceptances paid without funds (Seymour v. Marvin, 11 Barb. 80); or of whether or not there are proper and 330 CHAP. II.] ADMISSIBILITY OF ORAL EVIDENCE. * 203 and terms of the contract, unless the custom is particularly and expressly excluded, (c) Parol evidence of custom and usage, consecLuently, is always admissible to enable us to arrive at the real meaning of the parties, (/) but not to prevail over and nul- lify the express provisions and stipulations of the contract, (g) The evidence of usage must, however, be clear and distinct, in order to affect the meaning of the terms of the contract, (A) and not be inconsistent therewith, (i) The known and received usage of a particular trade or profession, and the established course of every mercantile or prolessional dealing, are considered to be legitimate modes of expending money in procming the passage of an act of the legislature (Judah v. Trustees, 16 Ind. 5t)); or of the current rate of excliange (Lowe V. Bliss, 24 111. 169) ; or of the value of Canada currency, and the rate of interest in Canada (Kermott v. Ayer, 11 Mich. 181); or of usages and customs of mining districts (SuUivan v. Hense, 2 Col. T. 424); or of the general organization and administration of the Methodist Episcopal Church (Sarahass v. Armstrong, 16 Kan. 192); or of the canons, rubrics, or rules of any particular church (Youugs V, Kansom, 31 Barb. 49) ; or of the rules and usages of the board of brokers, unlessi they are rules or usages of trade and commerce, which would be recognized with- out their adoption by any particular board or association (Goldsmith v. Sawyer, 46 Cal. 209); or of the fact that a railroad company has a corporate seal, for the pur- pose of impeaching an appeal bond filed by them, bearing a scroll for a seal (Illi- nois Central E. E. Co. v. Johnson, 40 111. 3,5); or of a pro tcvi. appointment of one of the directors of a bank as president (Crawford v. Branch Bank, 7 Ala. 383); or of the meaning of the term " whaling Toyage," employed in a policy (Child v. Sun Mut. Ins. Co., 3 Sandf. 26); or of the meaning of printers' marks at the foot of an advertisement, so as to infer the date and number of times a notice has been pub- lished, from abbreviations at the foot of the slip as printed, such as " Oct. 3, 4t " (Johnson v. Eobertson, 13 Md. 476). An unreasonable, &c. custom is inoperative. Fuller V. Eobinson, 86 K. Y. 306. For a general view, see Lawson, Usages and Customs (1881). The requisites to their validity, ib. Ch. 1 ; the proof necessary to establish them, ib. Ch. 2 ; their effect on different relations and occupations, ib. Ch. 3: as, banking, sect. 65 ; car- riers, sect. 78; corporations, sect. 103 ; insurance, sect. 108 ; landlord and ten- ants, sect. 126 ; master and servant, sect. 134; partnership, sect. 138 ; agency, sect. 142 ; sales, sect. 156 ; their admissibility to vary writings, ib. Ch. 4, 5. (e) Many agricultural customs have 752 ; 14 L. J. Ex. 143 ; 2 Taylor on been embodied in the Agricultural Hold- Evidence, p. 1026, 5th ed. ; Blackett t. ings Act, 38 & 39 Vict. c. 92, and for Eoyal Exchange Assurance Co., 2 C. & divers customs of different counties see J. 429 ; Eoxburghe v. Eobertson, 2 Woodfall's Landlord and Tenant, 11th Bligh, 156; Eobertsi'. Barker, 1 C. &M. ed., by Lely, 721. 808; Phillip.s v. Briard, 1 H. & N. 21; (/) Hutton V. Warren, 1 M. & ^V. Cuthbert v. Cumming, 24 L. J. Ex. 475, 476; Domat, liv. 1, tit. 1; Wig- 200. gleswoi-th V. Dallison, 1 Doug. 201 ; 1 {h) Bowes v. Shand, 2 Ap. Cas. 455. Smith's L. C. 5th ed., p. 520. (»') Hayton». Irwin, 5 C. P. D. 130, {g} Clarke v. Eoystone, 13 M. & W. C. A. 331 * -04 INTEllPKETATION OF CONTRACTS. [BOOK I. tacitly annexed to the terms of every mercantile or professional contract made in the ordinary course of business in which [*:il)4] the * usage prevails, (/,:) if there lie no woids thcix'in expressly coutrulling or excluding the ordinaiy opera- tion of the usage; and parol e\idcuce tliercul' may cdusecpiciilly be brought iu aid of Uie written instrument. (/) The priucij)le on \\ Inch the evidence is admitted is that the parlies have set down in writing those only of tlie terms of the contract whieh were necessary to be determined in tin' jiavlicular case, leaving to iniphcatioii and tacit understanding all those general and nnvarying incidents which a uniform usage would annex, and accoiding to which they must be considered to contract, unless they cxpres.sly exelude them, (ui) Whether the Icrnis of the ciintract are such as td exclude e\idcnce of the custom, is a ques- tion for the judge, and not for the jury, (vt) A Lical custom or usage of a particular place or of a particular class of persmis is not binding upon ])eisons li\ing at a distance, and who are proved to ha\-e been wholly uiia(([uaiiited with such usage, (o) And a custom in a i)articular market that a broker to buy is a principal to sell, is not binding upon a persim ignorant of the existence of sni'h custom, for it changes the intrinsic cliaracler of tlie contract I y) jVnd so is a rule that a broker can only recognize the jiei'son emjiloying him, allliougli he kiKn\s him to be only an agent (y) If the terms of the contract, are clear, they jnust ]ire\ail, in the absence of \'ery clear and consislent evidence that, by (uistom, something different is meant, (r) lUit if a mer- chant residing in London emplo\'s an agent iu Li\erpool to make (k) .Mian r Sumliiis, 1 II. & (.'. 123; Mmlmi, L. 1!. 7 (). 1!. I'lCr. -II L. J. Q. 31 L. J. Ex. :i(i7. 11. -l!!. (/) Syns II. Jonas, 2 Ex.li. Ill; (») T'arkcr v. lUx-tson, 4 < '. B. flvant r. Maddox, U, M. & M'. 7:'.7; N. .s. ;!,Sr,;27 L. .1. I'. I'. -Jliil. lloiinir r. (lal.liirc, :■, Wr. N. 1!. Id. (a) I.oril Ti'ntmliMi, ('. ,T., I'.aitlett {ill) HuiiilVry V. Dale, 2il I,. .1. IJ. B. v. Puitland, 111 li. & ('. 770 ; Kircliiirr 14(1 ; 7 Ell. & Bl. 2(;(; ; t'.l. Bl. & El. v. Vriius, 12 Mnorc 1'. I'. 3'.19; SHccliiif; 1004; 27 L. .T. 1,1. E. Slid; ^AU■■.\s i\ Biis- v. Vnn;; 30 h. J. ('. 1'. loll; 9 V. B. tt.w, 27 ib. ; (,,l. B. :.1(M; Ell. Bl. & Ell. N. s. r.:M. 007; jlrr;. V. Slr,k(-iiii""-Tivnt, 1:1 I,. ,1. (/)) lioliinson 1). Wnllctt, L. li. 7 II. M. ('41; Bniwn v. Bynic, 3 Ell. & I'd. L. 802. 71,5; Cntlilicrt v. Ciimniin.L', 10 l'',xrli. (q) Pearson r. Snill, CIi. D. lOS. .SI.'-,; Field ■!). T,rlc;in, 6 H. & N. 017; (;■) Bowes c. Sliand, 3 Ap. ( 'a.ses, 30 L. J. Ex. 168; Myers r. S.irl, :!o L. 4.''.5 ; llaytou v. Irwin, 5 C. P. D. J. Q. B. 9 ; ;i Ell. & Ell. 30(i ; Fleet v. 130. CHAP. II.] ADMISSIBILITY OF ORAL EVIDENCE. * 205 a contract there, the contract so made will be clothed with all the iiicideiite of a Liverpool contract in respect of custom and usage of trade, (s) Where the written contract does not exclude the custom, oral evidence is not admissible for the purpose of showing that the parties did not intend it to apply, (t) Oral evidence is admissible to show that by the custom of a partic- ular trade, persons describing themselves in the contract as " agents to merchants " are personally liable if they do not dis- close their principals within a reasonable time, (u) * Customary Meaning of Particular Words. — If by [* 205] the known usage of trade or by custom a word has acquired, in respect of the subject-matter of the contract, a pecu' liar sense and meaning different from the ordinary popular sensf; and meaning, evidence is admissible to show that the partial used the word in its customary trade acceptation, and not in the ordinary popular sense. Thus the word thousand in certain trades comprehends a larger number of units than it does in itn ordinary acceptation. In the herring trade, for example, sw score herrings went to the hundred, and sixty to the thousand; and parol evidence was consequently held to be admissible to show that the word "thousand," when applied to herrings in the contracts of herring-dealers, meant twelve hundred. In a lease of a rabbit-warren, parol evidence was admitted to show that, by the custom of the country where the lease was made, iii taking an account of the rabbits on a rabbit warren, the numberii were computed at one hundred dozen to a thousand ; and this word " thousand " in a lease as applied to rabbits was conse' quently construed to mean one hundred dozen, or twelve hun- dred, (.r) So where an insurance was effected " to any port in the Baltic," evidence was admitted to sliow that the Gulf of Fin- land is considered by universal custom and consent amongst merchants and in mercantile contracts to be within the Baltic, though the two seas are treated as distinct by geographers, (y) (s) Graves v. Legg, 2 H. & N. 213; (x) Smith v. Wilson, 3 B. & Ad. 26 L. ,T. Ex. 316. 728. (0 Fawkes v. Lamb, 31 L. J. Q. B. (y) Uhde v. Walters, 3 Campb. 16; 98 ; but .see Burges v. Wickbam, 33 L. Brough v. AVhitmore, 1 T. K. 210; An- J. Q. B. 17. dersou v. Pitcher, 2 B. & P. 168. (m) Hutchinson v. Tatham, L. R. 8 C. P. 482. 333 * 205 INTERPRETATION OF CONTRACTS. [BOOK I. And in a lease of a coal mine, evidence was admitted to show that the word '' kvd " in niiuiug districts had a meaning different from the ordinary popular meaning, and that the word was used by the parties to the contract in the sense in which it is ordi- narily employed by miners. (;:) But the custom and usage must be general and universal, and not the practice or course of deal- ing of a particular firm or house of trade, such as the usage of Lloyd's, (fl) Terms of Art — Trade Acceptations.^ — The meaning of all words and terms of art and specifications of quantity, quality, weight, and measure, are regulated and controlled by local custom, unless the terms have been selected and a definite meaning given to them by the legislature. (I) But to vary the 1 Words peculiar to an art, science, or vocation, worcls appearing to have been used in their technical rather than their popular meaning, must he read in their technical sense, which may be ascertained as a. question of fact by the testimony of experts (2 Min. Inst. 957; 2 Pars. Contr. 41)3, 535, 555 ; 1 Stoiy, Contr. (5th ed.) 803) ; and words which had acquired a special sense by usage of a trade or business, probably within the view of the parties when contracting, will be I'ead in that sense, which may be ascertained by the testimony of persons con- versant with the usage. Doane u. Dunham, 79 111. 131 ; Rindskoff v. Barrett, 14 Iowa, 101 ; Robinson v. Fiske, 25 Me. 401 ; Appleman v. Emerson, 9 Pick. 422 ; Eaton r. Smith, 20 Pick. 150; Hinton v. Locke, 5 Hill (X. Y.), 437; Aator w. Union Ins. Co., 7 Cow. 202; Coit v. Commercial Ins. Co., 7 Johns. 385; Danai). Fiedler, 12 N. Y. 40; Laurence v. Gallagher, 42 N. Y. Superior Ct. 309; Wayne ■,5. The General Pike, 16 Ohio, 421; Lacy v. Green, 84 Pa. St. 514. Where the terms of a contract are plain, usage cannot be allowed to affect ma- 1 erially the construction to be placed upon the instrument ; but when the terms are o.mbiguous, usage may influence the judgment of the court in ascertaining what the parties meant when they employed such terms. Moran v. Prather, 23 Wall. 492; see also Brown v. Foster, 113 JIass. 136. However terms may be understood in their ordinary sense, if the parties have attached other, or unusual, or arbitrary meanings to them, to be derived from their fair interpretation in the contract, they have the right so to employ them. But to accomplish such purpose, and to vary the common understanding, the meaning ought to be plain and free from reasonable doubt. McCov f . Erie, &c. Transp. Co., 42 Md. 498. Where one party in making an ofl'er uses a term — such as buying "on mar- gin " — which has acquired a special and well-understood sense in the business to which the negotiation belongs, and the other party, supposing the word to be used in that sense, accepts the offer and acts upon it, the first party will not after- wards be allowed to deny that meaning. Hatch v. Douglas, 48 Conn. 116. (z) Clayton v.Gregson, 5 Ad.&E. 302. (J) Taylor v. Briggs, 2 C. & P. 525; (a) Gabay v. Lloyd, 3 B. & C. 797; Hutchison" v. Bowkcr, 5 M. & W. 535; Sweeting o. Pearce, p. *204; Scott v. Spicer u. Cooper, 1 Q. B. 424. Irving, p. * 691. 3.34 CHAP. II.] ADMISSIBILITY OF OKAL EVIDENCE. * 206 meaning of plain words, the existence of the custom must be " clear, cogent, and irresistible." (c) If there are peculiar expres- sions used in a contract which have in a particular place or trade a known meaning * attached to them, it [* 206] is for the jury to say what the meaning of those expres- sions is, but for the court to decide what is the meaning of the contract, (d) Oral Evidence of Conditional Assent. — If two parties sign a memorandum of a contract upon the strength of a clear oral agreement that the writing is not to be binding until the happen- ing of a given event, and the event never happens, there is no contract, (c) Where a party claims as the indorsee of a bill of exchange, it may be shown that the alleged indorser wrote his name on the bill, and delivered it to the alleged indorsee for a particular purpose, and on the understanding that it should not operate as an indorsement until the condition was fulfilled. (/) And if an oral agreement and an agreement in writing have been made, whether contemporaneously or not, upon two distinct independent matters, and the one does not conflict with or alter the other, both may stand ; and the oral bargain may be enforced as well as the contract in writing, (ff) When the contract is evi- denced by letters and writings, it is for the court to interpret them, and determine whether they do or do not amount to a con- cluded contract ; and if the judge leaves it to a jury to say what is the effect and meaning of written correspondence, there is a misdirection, (h) Estoppel by Deed.^ — The rule of law which stops a party from disputing or contradicting what he has affirmed or declared I See Bigelow, Estoppel (3d ed,), 267-384. (c) Lewis V. Marshall, 13 L. J. C. P. "Wallis r. Littell, 11 C. B. N. s. 369; 31 193. L. J. C. P. 100; Davis v. Jones, 17 {d) Hutchisons Bowker, 5 M. &W. C. B. 634. 542; Neilson t'. Harford, 8 ib. 823; {/) ]3ell i). Lord Ingestre, 12 Q. B. Trueman v. Loder, 11 .\d. & E. 599; 317: Bannermani). White, 31 L. J. C. P. Sotilichos V. Kemp, 18 L. J. Ex. 36; 3 28. Ex. 105. io) Lindley v. Lacey, ante, p. * 201 ; («) Pym V. Campbell, 6 Ell. & Bl. White v. Parkin, 12 East, 578; Harris 370; 25 L. J. Q. B. 277; Rogers v. v. 'Rickett, ante, p. * 202; Green D.Sad- Hadlev, ante, p. *202; Lindley v. La- dington, 7 Ell. & Bl. 503. cey, 34 L. J. C. P. 9; 17 C. B. N. s. 678; {h) Cheveley v. Fuller, 13 C. B. 122. 385 *207 INTEEPRETATION OF CONTRACTS. [BOOK I. hy deed (ante, p. * 19), does not, of course, extend to strangers to the contract, (i) A party to a deed, moreover, is not estopped in an action by another party not founded on the deed, and wholly collateral to it, from disputing the truth of certain facts recited and set forth iu such deed. (ZJ When a recital in a deed is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But ^\■here it is intended to be the statement of one party only, the estoppel is confined to that party ; and tlie intention is to be gathered from construing the whole instrument. (/) As between the parties themselves, any averment of a fact made by [ * 207 ] one of the parties * in the nature of a representation or warranty to the other may be contradicted and shown to be false by that other, (m) But the party who makes the averment is not permitted to contradict or dispute the fact re- cited. (ii) If a lease, however, recites that the lessor is possessed of real or personal projierty, tlie lessee who executes and accepts such lease is estojjped, during tlie continuance of liis occupation, Ironi denying the title and possession of his lessor at the time such lease was executed, (o) A " grant " of an estate which would amount in equity to a representation, does not amount in law to a representation of a right to grant, that is, to an estoppel. There must be a strict recital, to the effect that the party has the right or title, in order, by estoppel to bind him or persons claiming through him. (p) Estoppels In Pais ^ arise " where a party by his words or conduct wilfully causes another to believe in the existence of a certain state of thiugs, and induces him to act on that belief, and alter his own previous position.'' A party who has so acted is said to be estopped before the country, and precluded from falsifying his own representation, (q) Conduct by negligence or , 1 See Bigelow, Estoppel (3d ed. ) 387-5S0. {i) 1!('\- 17. Scammonden, 3 T. 474. (?i) Oldham v. Lanf^ead, cited, 3 (k) Carpenter t;. Biiller, 8 M. & W. T. R. 439; Humble v. Hunter, 17 L. J. ■JO',). Q, B. 350; 12 Q, B, 310. (/) Strougliill V. Buck, 14 Q. B. 787; (o) Beckett v. Bradley, 8 Sc. F. E. 19 L. J. Q, B, 209; AVilesi), Woodward, 843; 7 M. & Gr. 9'.'5. 5 Ex. 557; 20 L. J. Ex. 264. (p) General Finance Co. v. Liberator (m) Hayne v. Maltby, 3 T. R. 441; Soc, 10 Cb. D. 15. Vin. Abr. Estoppel, M. 455. (. Hutchinson, 9 Ad. & E. 643; 56. Wallace v. Kelsall, 7 M. & W. 273, 274; (s) Farmeloe v. Bain, 1 C. P. P. 445. Graves u. Key, 3 B. & Ad. 313; Bowes (n) Foster 77. Jolly, 1 C. M. &R. 708; v. Foster, 2 H. & N. 779. Ridout V. Bristow, 1 C. & J. 231. (c) Lee v. Lancashire & Yorkshire (b) Lampon v. Corke, 5 B. & Aid. Railway Co., L. E. 6 Oh. 527. 611; Skaife v. Jackson, 3 B. & C. 423; 338 *BOOK II. [*209] THE LAW OF PARTICULAR CONTRACTS. CHAPTER I. THE CONTRACT OF LETTING. SECTION I. LANDLORD AND TENANT. Leases. ^ — A lease is a contract whereby the temporary use and possession of a house or land are granted by the owner to 1 For general accounts of the contract of lease, see Taylor, Land. & Ten. (7th cd.) particularly c. 5, The Instrument of Demise, and c. i. The Contracting Parties ; Wood, Laud. & Ten. (1881) especially c. 25, Of Leases in General, c. 20, Of Leases between Particular Individuals, and c. 21, Of Leases under Powers ; Pars. Contr. 499 ; Story, Contr. (5th ed.) sect. 120 ; U. S. Dig. tit. Landlord and Tenant, 11.; also Jackson & Gross, Land. & Ten. in Pennsylvania (1882) and Mc- Adam, Land. & Ten. (2d ed. 1882) ; Mart. Conv. tit. II.; article, 24 Alb. L. J. 364, 16 Am. L. Kev. 16 ; 6 South. L. Rev. 902 ; Laws. Us. & C. 267-273. Mining leases, privileges, and contracts relating to them, "Wood, Land. & T. 99, 304, 654;Grabb«. Bayard, 2 Wall. jr. 81; Beattyi). Gregory, 17 Iowa, 109; New Jersey Zinc Co. i>. New Jersey Franklinite Co., 13 N. J. Eq. 322; Coleman v. Blew- ett, 43 Pa. St. 176; Grove v. Hodges, 55 Pa. St. 504; Gillett v. Treganza, 6 Wis. 343; Hill v. Taylor, 22 Cal. 191; Real Del Monte Min. Co. v. Pond, &c. Min. Co., 23 CaL 82 ; Gatewood v. McLaughlin, ib. 178 ; Antoine Co. v. Ridge Co., ib. 219; Patterson v. Keystone, &e. Co., ib. 575; Richardson v. McNulty, 24 Cal. 339; Freer t). Stotenbur, 36 Barb. 641; McBee «). Loftis, 1 Strobh. Eq. 90; McKnight V. Kreutz, 51 Pa. St. 232; Draper ii. Douglass, 23 Cal. 347; Upton v. Brazier, 1 7 Iowa, 153 ; Chapman v. Briggs Ii-on Co., 6 Gray, 330 ; Titus v. Minnesota Min. Co., 8 Mich. 183; Desloge c. Pcaree, 38 Mo. 588; Suffern v. Butler, 21 N. J. Eq. 410; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Massot v. Moses, 3 S. C. 168; Barker <). Dale, 3 Pittsb. 190; Meyers ». Farquharson, 46 Cal. 190; Knight f. Indiana Coal, &c. Co., 47 Ind. 105; Ganter ■». Atkinson, 35 Wis. 48; Townsend v. Peaslee, ib. 383; Harknessc. Burton, 39 Iowa, 101; Sobey 13. Thomas, 39 Wis. 317; Allison's Appeal, 77 Pa. St. 221; Seavers v. Cleary, 75 III. 349; Ger- 339 *209 THE CONTEACT OF LTSTTING. [BOOK II. another for a stipulated or implied remuneration. He who grants the possession and use of the property to be enjoyed for hire is reDS«. Huhn, &c. Min. Co., lONcv. 137; Freckr. Locust Min. Coal Co., 86 Pa. St. 318; Mine Hill, &c. K. K. Co. v. Lij>pincott, ib. 468; Prcvust v. Gcrrell, 11 Pliila. 263. See further, Blanch. & W. Lead. Cas. Mines; U. S. Dig. tit. Mines. Coal-mining leases in particular. "Watson Coal, &c. Co. v. Casteel, 73 Ind. 296; Austin «. lluntsville Coal, &c. Co., 72 Mo. 535; Harlan i'. Ij«liigh Coal, &o. Co., 35 Pa. St. 287; Powell v. Burroughs, 54 ib. 329; Oiiffin u. Fellows, 81 * Pa. St.' 114; Kemble Coal, &c. Co. v. Scott, 90 Pa. St. 3;;2; McDowell v. Hendrix, 67 Ind. 513; McLean County Coal Co. r. Lennon, 91 111. 561; Wilms v. Jess, 94 111. 464; Bannon v. Mitchell, 6 111. Ai)p. 17; Livingston v. Moingona Coal Co., 49 Iowa, 369; Cook ». Andrews, 36 Ohio St. 174; List v. Cotts, 4 W. Va. 543; WQ- lianis ». Summers, 45 Ind. 532; Trout ». McDonald, 83 Pa. SL 144; Randolph v. Halden, 44 Iowa, 327; Scranton v. Phillips, 94 Pa. St. 1.5. That the general jirincfples settled as to these apply also to leases with the right of quan-ying, or of digging clay, see Sheets v. Allen, 89 Pa. St. 47; Stewart v. Munford, 91 111. 58; Yaules fT Wright, 66 Ind. 319. Renewals, Wood, Land. & Ten. sect. 416; Taylor, L. & T. sect. 332; EleTator Co. 8'. Brown, 36 Ohio St. 660 ; Insurance, &c. Co. o. National Bank, 5 Mo. App. 333; Bruce V. Fulton Nat. Bank, 79 N. Y. 154; s. c. 35 Am. Rep. 505; Behrman v. Barto, 54 Cal. 131; Flint ,j. Pearce, 11 E. 1. 576; Neiswanger t. Squier, 73 Mo. 192. Tenant holding over without new agreement may be held as on a renewal at same rent. Clinton Wir(^ Cloth Co. r. Gardner, 99 111. 151. Farming on shares is discussed in article 24 Alb. L. J. 504 ; notes by A. C. Freeman to Deraott v. Hagerman, 8 Coav. 220; 18 Am. Dec. 443; Bailey r. Fille- brown, 9 Me. 12 ; 2;^ Am. Dec. 529 ; Putnam v. Wise, 1 Hill (N. Y.), 234; 37 Am. Dec. 309 ; U. S. Dig. tit. Landlord and Tenant, VI. AVhelher under various forms of agreements for farming on .shares the land- owner and the cultivator are to be regarded as landlord and tenant, tenants in cominon, employer and employee, or otherwise, see Evans v. English, 61 Ala. 416; Chase i;. McDonnell, 24 III. 236; Hoskins v. Rhodes, 1 Gill & J. 266; Guest V. Opdyfce, 31 N. .1. L. 552 ; Taylor v. Bradley, 4 Abb. App. Dec. 363 ; Doty v. Heth, 52 Miss. 530; Haywood v. Rogei-s, 73 N. C. 320; Neal v. Bellamy, ib. 384. An agreement between the owner of land and another person, to the effect that the latter shall cultivate the land and pay to the former a specified portion of the produce, may create a tenancy in common in the crops, but is not necessarily inconsistent with the lelation of landlord and tenant. Swanner ». Swanner, 50 Ala. 66: Alwood v. Ruckman, 21 ill. 200; see Wentworth v. Port.smouth, &c. R. R., 55 N. H. 540. The question whether an agreement for cultivation upon shares constitutes a joint tenancy in the ero])S, or the relation of landlord and tenant, depends upon the intention of the parties fDixon i'. Niicolls, 89 111. ;')72 ; Johnson v. Hoffman, 53 Mo. SOI); and their having used such words as "leases, rents, and lets" in their agreement will indicatean intention to constitute the relation of landlord and tenant (Johnson v. Hoffman, supra ; see Griswold v. Cook, 46 Conn. 198). The difference between a tenant and a cropper is that a tenant has an estate in the land for the term, and the title to the crop while growing is in him. Tlie landlord's share does not vest in the latter until division ; but the cropper has pos- session as a servant only until his share is divided off to him by the landlord. Harrison v. Ricks, 71 N. C. 7. A contract between the owner and his l.iiborers for the cultivation of a crop ob 340 CHAP. L] landlord and TENANT. * 209 called the lessor or landlord ; and he who has the enjoyment of it, paying the rent or hire, is called the lessee or tenant In the shares, creates a tenancy in common in the crop, and not the relation of landlord and tenant. Smith v. Eiee, 66 Ala. 417 ; Brown v. Coats, ib. 439. A contract between the owner of a farm and another peison for the one to fur- nish the land, seed, and utensils for raising a crop, and the other the labor therefor, but without the right of possession of the premises, constitutes between the parties the relation of tenants in common of the crop, not that of landlord and tenant. Creel v. Kirkham, 47 111. 344; State v. Jewell, 34 N. J. L. 259. Letting land on shares for a single crop does not amount to a lease of the land. Bradish v. Schenck, 8 Johns. 151; Warner v. Hoisingtou, 42 Vt. 94. An agreement to sow certain crops and render a certain proportion of the crop for the use of the land, is an agreement to work on shares, not a lease. Caswell V. Districh, 15 Wend. 379. If one be hired to work land, receiving for liis compensation part of the produce, he is a cropper, not a tenant. He has no interest in the land, but receives his share as the price of his labor. Adams u. McKesson, 63 Pa. St. 81. The case of the cropper is rather a mode of paying wages than a tenancy. The title to the crop subject to the wages is in the owner of the land, the cropper only having a right to go on the land to plant, work, and gather the crop. Appling v. Odom, 46 Ga. 583. See also Huffu. Watkins, 15 S. C. 82. Letting land to a person for one year to cultivate it on shares, makes him a tenant, and not a mere laborer or servant. Jackson v. Brownell, 1 Johns. 267. Construction and validity of various agreements for cultivating land on shares. Herskell v. Bushnell, 37 Conn. 36 ; Griswold v. Cook, 46 Conn. 198 ; Silvers v. Chitwood, 59 111. 193; Clem v. Martin, 34 Ind. 341; Eees v. Baker, 4 Cireene, 461; Hurtt V. Woodland, 24 Md. 393, 417; Shearer v. Jewett, 14 Pick. 232; Moore v. Mohney, 1 Mich. N. P. 143; Brown v. Lincoln, 47 N. H. 468; Harrower v. Heath, 19 Barb. 331; Wilber v. Sisson, 53 Barb. 258; Hobbs i>. Wetherwax, 38 How. Pr. 385; Ai-mstrong v. Bicknell, 2 Lans. 216; Pareell v. Stryker, 41 N. Y. 480 ; Harri- son i?. Picks, 71 N. C. 7; Gazley v. Wayne, 36 Tex. 689: Brown v. Burrington, 36 Vt. 40; Mason v. Clifford, 4 Fed. Rep. 177; State v. Copeland, 86 N. C. 691. Relative rights of the parties, and how they may be enforced, either by entering and taking possession, or by various judicial remedies. Robinson v. Kruse, 29 Ark. 575; Herskell v. Bushnell, 37 Conn. 36; McCook v. Cousins, 39 Ga. 125; Davis V. Brocklebank, 9 N. H. 73; Hatchell v. Kimbrough, 4 Jones L. 163; Ware v. Simmons, 65 Ga. 94 ; Williams v. Cleaver, 4 Houst. 453 ; Wilcoxen t'. Bowles, 1 La. Ann. 230 ; Fiquet c. Allison, 12 Mich. 328 ; Walker v. Fitts, 24 Pick. 191 ; Moore v. Ross, 11 N. H. 547; La Point v. Scott, 36 Vt. 603; Snialley v. Corliss, 37 Vt. 486; Dunning v. South, 62 111. 175; Secrest v. Stivers, 35 Iowa, 580; Becnel V. Becnel, 23 La. Ann. 150; Cornell v. Dean, 105 Mass. 435; Williams v. Bemis, 108 Mass. 91; Taylor v. Bradley, 4 Abb. App. Dec. 363; Fordyce v. Hathorn, 57 Mo. 120; Varner v. Spencer, 72 N. C. 381; Tucker i'. Hasson, 32 Tex. 636; Beckwith V. Carroll, 56 Ala. 12; Wheat v. Watson, 57 Ala. 581; Goeing v. Outhouse, 95 111. 346; Vanderslice v. Mumma, 1 111. App. 434; Babley i'. Vyse, 48 Iowa, 481; Wells V. Hollenbeck, 37 Mich. 504; Adams v. Leip, 71 Mo. 597; Enley u. Kowlin, 1 Bixt. 163; Patterson v. Hawkins, 3 Lea, 483. In farming on shares, the tenant, as against the landlord, is entitled to posses- sion of the whole crop while it is growing, and may recover damages from the landlord if cattle of the latter break into the field and injure the crop. Frout v. Uardin. 56 Ind. 165. 341 *209 THE CONTRACT OF LETTING. [BOOK II. Roman law the former was called " locator" the latter " conduc- tor; " and the contract itself " locatio rei." In the French law it is termed " bccil a layer," or a bailment for hire ; the lessor is called the " bcdlleur," or bailor, and the hirer the "prcneur," or " locatairc." (») If the land or realty is granted by deed to be enjoyed for a term, without any payment of rent by the grantee, the grant amounts to a gommodatum, or gratuitous loan of the use of the land, and does not create a contract of letting and hir- ing between the parties. On the other hand, a demise for a term Where a lease is made by which the rent is to be paid in a part of the crop, the contract is executory, and the title to the crop made is in the lessee, untU the lessor's part is separated and allotted to him ; and, therefore, before that time the lessor has no right to take possession of any part of the crop without the consent of the lessee. Ross v. Swaringer, 9 Ired. L. 481. Where land is leased to a cropper for a year on shares, the landlord has a lien on the growing crop, and no part of the crop can be removed by the tenant until the share of the landlord is set off. Case v. Hart, 11 Ohio, 364. Tlie lessor of a farm on shares, with a proviso that all crops shall remain under his control till sold, has the entire property till tliry are sold, and then a lien on the proceeds till the lessee's covenant is performed. EsJon v. Colburn, 28 Vt. (;31. A contract for working a farm on shares does not amount to a lease of the land. It does not divest the owner of his possession, nor give the laborer anything moi'e than a right to enter for the purpose of the cultivation agreed for. After the crop is severed and the laborer has deposited the owner's share in one portion of the laud, his authority to enter upon that portion ceases, and any subsequent entry and interference with such portion is atrespass. "Warner v. Hoisington, 42 Vt. 94. Determination of claims of third persons, — e. g. creditors of landowner or cul- tivator, or purchasers from either, — to the crop or the land. T.eland ik Sprague, 28 Vt. 746; Upham v. Dodd, 24 Ark. 545; Eeam v. Ilarnish, 45 Pa. St. 376; Tinker V. Cobb, 39 Vt. 483 ; Lathropw. Eoger.s,l Ind. 554; Wilson ij. Walker, 46 Ga. 319 ; Lufkin V. Preston, 52 Iowa, 235; Atkins !'. Womeldorf, 53 Iowa, 150. One who hires land to raise a crop upon it, on an agreement that the crop is to be the property of the landlord, hut that after he has taken out a certain portion by way of compensation for use of land, and for certain supplies, tlie remain- der shall belong to the tenant, has no right or interest in the crop before divi- sion which he can sell or mortgage. Ponder v. Rhea, 32 Ark. 435. Where land is leased upon condition that a third of the crop shall be given to the owner in payment of rent, the owner acquires no title to the part of the crop reserved for rent until it is set apart for him by the tenant. Rent thus reserved, and not accrued, passes with a conveyance; hence a purchaser of the land at a judicial sale becomes entitled thereto. Town.send v. Isenberger, 45 Iowa, 670. Where land is leased for a .share of the crops raised, to be divided after gather- ing, the title to the whole will be that of the tenant until the division and delivery. Upon levy thereon of an execution against the tenant before the gathering, an agreement between him and the landlord that the latter shall receive his share in the field, will not be allowed to defeat the levy. Sargent u. Courrier, 66 111. 245. (a) Encyc. du Droit, tit. Bail. 342 CHAP. I.J LANDLORD AND TENANT. * 210 of years, if it is by deed, and for the whole term which the lessor has in the premises, operates as an assignment, (h) Agreements for Leases. — We have already seen that all agree- ments for leases must be authenticated by some note or memoran- dum, signed according to the provisions of the statute of frauds (awfe, p.*159). We have also seen that all leases exceeding three years in duration, required by the statute of frauds to be evidenced * by a signed writing, must now be au- [*210] thenticated by deed (ante, p.*l79). Every lease, there- fore, in writing, not under seal, for a term exceeding three years in duration, amounts only to an agreement to grant a lease for the term specified, (c) But if an oral agreement for a lease has been entered into, and the intended lessee, relying on the prom- ise of the lessor to gTant the lease, takes possession of the land and expends money in building, draining, and improving, and there is, therefore, a part performance of the contract, the court will enforce the oral contract, and compel the lessor to grant the lease agreed upon, on the ground that, by refusing to grant the lease and give the party possession in execution of the con- tract, he is guilty of a direct fraud, which ought to be relieved against, (d) Part performance by a sub-lessee is equivalent to part performance by the lessee, (e) When a party has actually been let into possession under an oral contract of demise, and rent has been paid to and received by the landlord, a tenancy from year to year between the parties arises by implication of law (post, p.*217). From every contract to grant a lease there is an implied agreement by the party contracting to grant the lease that he has a good right and title so to do. (/) There may be an independent and collateral agreement to hold land at a rent which, although it does not operate as a demise without tak- ing possession, yet is a binding undertaking to pay the amount of the rent, (g) (b) Paraieiiter v. Webber, 8 Taujit. 172; Gregory v. Mighell, 18 Ves. 328; 593; Beardman i;. Wilson, L. E. 4 C. P. Mundy v. Joliffe, 5 Myl. & Cr. 167; 57; 38 L. J. C. P. 91. Parker v. Smith, 1 Coll. Ch. C. 608. (c) Bond V. Rosling, Parker v. Tas- («) Williams v. Evans, L. R. 19 Eq. well, Tidey v. Mollett, ante, p. *179; 547. Burton !>. Reevell, 16 M. & W. 307; 16 (/) Stranksu St. John, L. R.2C. P. L. J. Ex. 85; RoUason v. Leon, 7 H. & 376 ; 36 L. J. C. P. 118. N. 73; 31 L. J. Ex. 96. (g) AdamsD. Haggar, 4 Q. B. D. 480, (d) Morphett v. Jones, 1 Swanst. C. A. 343 *211 THE CONTEACT OF LETTI^'G. [BOOK II. Present Demises.^ — No precise words or technical form of language are req^uisite to constitute a present demise. An estate or term of years in the land may be created and vested in a third party by giving him a license to enjoy a house, or making an agreement with him that he " shall reside " therein, provided some certain rent or specified service is reserved, or something is given as the consideration of the contract, and possession is given and accepted under the contract, (h) If there are any words showing a present intention that one is to give and the other to have possession for a determinate term, a tenancy is created ; and this intention may be manifested by expressions contained in a series of letters, as well as by the formal words of a single instrument, (i) And on the other hand, [* 211 J although * there be precise and formal words of present demise, yet, if there appears from the face of the entire contract a contrary intention, the instrument will be considered only an agreement for a future lease, and will not operate as a present demise, (k) It is a rule of law that whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the possession and profits of the land, and the other come into them for such a determinate time for a certain hire or rent, such words, whether they run in the form of an assignment or of a license, covenant, or agreement, are of themselves sufficient, and will in construction of law amount to a lease for years, as effectually as if the most proper and pertinent words had been made use of for that purpose. (F) A lease may be made either for life, or for years, or at will ; and a contract for letting and hiring of land will, if it cannot operate as an assignment, be supported as a ' The fact that one to whom the owner has verbally and unambiguously agreed to give a written lease of a building, to commence in future, has acquired posses- sion, will not convert the agreement into a present lease. Potter v. Mercer, 53 Cal. 667. (h) Co. Litt. 45 b; Bac. Ab. Leases v. Lloyd, 12 M. &^X. 478; Doe v. Clark, (K) ; Right v. Proctor, i Burr. 2209. 7 Q. B. 211 ; Taylor v. Caldwell, 3 B. (i) Chapman v. Bluck, 5 Sc. 531; 4 & S. 826. Bing. ]Sr. C. 187; Jones v. Eeynolds, 1 (l) Bac. Abr. Leases (K.); Shep. Q. B. 506, Touch, c. 14, 272; Bro. Abr. (Lease), ik) Morgan v. Bissell, 3 Taunt. 72; pi. 60; Cottee v. Richardson, 7 Exch. Doe u. Powell, 8 Sc. N. B. 687; Gore 143. 344 CHAP. I.] LANDLORD AND TENANT. * 212 lease, although it "was intended to pass all the lessor's inter- est, (m) Whenever the house or land of one man has been occu- pied and used by another, the prima facie presumption is that the use and occupation are to be paid for ; and the landlord is entitled to maintain an action to recover a reasonable hire and reward for the use of the land, unless the tenant can show that he entered into possession of the property under circumstances fairly leading to an opposite conclusion. A landlord, on the other hand, who has permitted a tenant to occupy property, and has received rent from the latter for such use aud occupation^ will be bound by his own acts, and cannot afterwards treat such tenant as a trespasser and turn him out of possession without a proper notice to quit. But if the tenant is a pauper who has been provided with a dwelling-house by the parish, or an old servant who has been accommodated with a cottage and garden by his master, or the son or other near relation of the owner, the possession and occupation do not raise a presumption of a contract of letting and hiring between the parties. The trans- action amounts only to a comviodatum, or gratuitous loan of the property for use. The possession of the tenant is the possession of the landlord or owner ; and the former may at any time be removed at the will and pleasure of the latter, (m) Proof of the Terms of Holding. — If a tenancy is^ actually created by entry on the land and payment of rent, the terms of the tenancy may be proved by oral testimony. Where laud was * about to be let, and printed papers of the [*212] terms of holding were distributed among parties, who assented verbally to the printed terms, and subsequently became tenants, it was held that a witness might look at the printed paper to refresh his memory when he was asked to prove the terms of the holding from recollection, (o) Lease by EstoppeL^ — We have already seen (oo) that no man 1 See Bigelow, Estoppel (3d ed. 1882), 327-332; ib. 390; Herman, Estoppel, 317, 858; U. S. Dig. tit. Landlm-d and Tenant, sects. 206-370; tit. Estoppel, sect. 599. The rule of estoppel extends only to rights reserved in the original lease. A (m) Pollock V. Stacy, 9 Q. B. 1035. (o) Lord Bolton ti.Tonilin, 5 Ad. & E. (n) Bertie v. Beaumont, 16 East, 33; 856. Hunt V. Colson, 3 M. & So. 791; Doeu. {oo) Ante, p. »206. Stanton, 2 B. & Aid. 373. 345 * 212 THE CONTEACT OF LETTING. [BOOK II. is permitted to allege or prove anything in contradiction or con- travention of his own deed. Where, therefore, a man grants a lease under seal, he is not permitted to avoid his own grant by proving that he had no interest in the demised premises, unless he is a trustee for the public, deriving his authority from an act of parliament, {p) As between him and his lessee, the lease operates by way of estoppel. " And if one makes a lease for years, by indenture, of lands wherein he hath nothing at the time of such lease made, and after purchases those very lands, this shall make good and unavoidable his lease, as well as if he had been in the actual possession and seisin thereof at the time of such lease made ; because he, having by indenture expressly demised those lands, is, by his own act, estopped and concluded to say he did not demise them ; and if he cannot aver that he did not demise them, then there is nothing to take off or im- peach the validity of the indenture, which expressly affirms that he did demise them ; and consequently the lessee may take ad- vantage thereof, whenever the lessor conies to such an estate in those lands as is capable to sustain and support that lease." {q) And when the estoppel becomes good in point of interest, the heir of the lessor, and all persons claiming under the lessor by assignment or otherwise, are bound by the estoppel (r) Upon the execution of the lease there is created, in contemplation of law, a reversion in fee simple by estoppel in the lessor, which tenant claiming under an oral lease from :t tenant at will is not estopped from maintaining an action of tort in the nature of trespass for his eviction from the tenement by one claiming under a subsequent written lease from such tenant at will. Hilbourne v. Fogg, 99 Mass. 11. A lessee of the heirs at law, — Held, to be estopped from denying their title by setting up a deed from their intestate to a third party, of which he was ignorant when they leased to him, such party having merely notified him no longer to pay rent to them, and he not having attorned, but allcgid to them inability as the reason of non-payment. Hawesi). Shaw, 100 JIass. 187. Where a person conveyed land to his wife through the medium of a trustee, claiming that the title was to be held in trust for him, and afterwards accepted a life-lease of a portion of it, and subsequently brought an action to obtain a re-con- veyance of the land, — Held, that the acceptance of the lease was a recognition of the wife's title, which estopped the husband from setting up any claim to the residue of the premises. Courvoisier v. Bouvier, 3 Neb. 65. ip) Fairtitle v. Gilbert, 2 T. R. 169. Goodtitle v. Morse, 3 T. E. 371 ; 2 (q) Bao. Abr. Lease (0). Wms. Saund. 418 a ; Doe v. Thomp- (r) Trevivan v. Lawrence, 1 Salk. son, 9 Q. B. 1043. 276 ; 2 Smith's L. C, 6th ed., 640j 346 CHAP. I.] LANDLORD AND TENANT. * 213 passes by descent to his heir, and by purchase to an assignee or devisee. So long, therefore, as a lessee enjoys everything which his lease purports to grant, he has no concern with the title of the lessor or the heir or assignee of the lessor (s) If, however, it appears by the recitals of the lease that the lessor had no interest in the land, or that he had only an equitable interest, at the time of the demise, there will be no estoppel, (t) The lessee is also in like manner estopped from denying the les- sor's title to grant the * lease, and setting up such want [ *213 ] of title as an answer to an action for the rent by the lessor or his assignee ; (m) for the law will not suffer the tenant to abuse a possession gained by the act and confidence of the landlord, and turn it to the injury of the latter, (as) But he may show that the lessor's title has expired ; (?/) and if he is evicted and deprived of the use and enjoyment of the demised premises by some person claiming by title paramount, the eviction is pleadable in bar to a demand of the rent ; but it must be an actual, and not a mere constructive, eviction. (2) An attornment to a receiver appointed by the court constitutes a tenancy by estoppel between the tenant and the receiver, which the court applies for the purpose of collecting the rents till a decree can be pronounced, taking care that the tenant shall be protected both while the receiver continues to act and when he is with- drawn, (a) Demises by Agents. — If the steward of a person not named says to an occupier, " I let you into possession in the name of the landlord," he may afterwards show by parol evidence who that landlord is ; and it is not open to the tenant to dispute the title of the unnamed landlord. (5) Where an agreeftient was (s) Cuthbertson v. Irving, 4 H. & N. Phipps ■». Sculthorpe, 1 B. & Aid. 50 ; 7.58; 6 H. & N. 135; 28 L. J. Ex. 306; Levy v. Lewis, 28 L. J. C. P. 144 ; 30 29 ib. 485. L. J. C. P. 142. (t) Pargeter v. Harris, 7 Q. B. 708 ; (y) Claridge v. Mackenzie, 4 Sc. 15 L. J. Q. B. 117; Greenaway v. Hart, N. E. 811; Doe v. Skirrow, 7 Ad. & E. 14 G. B. 340; but see Morton u. Woods, 157; Downs v. Cooper, 2 Q. B. 263. L. R. 3 Q. B. 658; 4 Q. B. 293; 37 L. (2) Delaney v. Fox, 2 C. B. N. .s. J. Q. B. 242; 38 ib. 81; Hx parte Pun- 768. nett, 16 Cb. D. 226. (a) Evans v. Mathias, 7 Ell. & Bl. (u) Cuthbertson v. Irving, 6 H. & 602. N. 135; 29 L. J. Ex. 485. (5) Tiudal, C. J., Fleming v. Good- (x) Dolby V. lies, 11 Ad. & E. 335; ing, 10 Bing. 550. 347 *214 THE CONTEACT OF LETTING. [BOOK II. entered into by an agent iu his own name for the letting of a house, and the rent was made payable to the agent in his own name, but at the commencement of the agreement he described himself as agent for the proprietors, it was held that he might show who were the proprietors at the time the agreement was signed, and that the tenant was estopped from disputing their title, (c) A land-agent or collector of rents has, as such, no implied authority to grant leases. (. Smith, 352 15 See Appendix, Vol. III. CHAP. I.] LANDLORD AND TENANT. * 218 tenant holds on such of the terms of the agreement as are appli- cable to a yearly tenancy ; and if he enters under an agreement for a seven years' lease by which he is to do certain repairs in the last year of the term, and holds during the whole of the seven years, he must do the repairs, (c) And if he holds over after the expiration of the term, and the landlord receives from him rent which has accrued due subsequently to the expiration of the lease, he becomes a tenant from year to year, (d) If a man takes possession of premises under an invalid lease from a tenant for life, and the remainderman accepts rent, or does any act recognizing the party in possession as his tenant, the latter forthwith becomes a lessee from year to year ; (e) but the mere * acceptance of two shillings and [ * 218] sixpence in a chief rent is not sufficient evidence of a tenancy from year to year. (/) So if a man enters into posses- sion as an intended purchaser, and agrees " to pay and allow " to the vendor "at the rate of ,£100 per annum from the time of taking possession of the premises until the completion of the purchase in equal half-yearly payments," he becomes tenant to the intended vendor " at a fixed rent of £100 per annum, pay- able half-yearly.'' (g) A tenancy from year to year is ordinaiily implied from the payment and acceptance of rent ; but thisprima facie presumption may be rebutted by showing that the money was paid or received by mistake. It is entirely repugnant to the notion of a tenancy from year to year that the option of de- termining it should rest solely with the tenant. Tlie notion of a tenancy from year to year, the lessor binding himself not to give notice to quit, has long been exploded. (A) A tenancy from year to year recommences every year, (t) A demise by a tenant from year to year to another also to hold from year to year, is in contemplation of law a demise from year to year during the 1 M. & R. 137; Knight v. Benett, 11 (g) Saunders?). Musgi-ave, 6 B. & C. Moore, 226; 3 Bing. 361; Doe v. Amey, 624; 9 D. R. 633. 12 Ad. & E. 476; 4 P. & D. 177; Bray- (h) Doe v. Browne, 8 East, 167. thwaite v. Hitchcock, 10 M. & W. 497. (i) Tomkins v. Lawrance, 8 C. & P. (c) Martini). Smith, L. R. 9 Ex. 60. 731; Gandy b. Jubher, 33 L. J. Q. B. (d) Bishop V. Howard, 3 D. & R. 151; Doe v. Dobell, 1 G. & Dav. 218. 297; 2 B. & C. 100. But this has been doubted, see Bartlett (e) Doe V. Morse, 1 B. & Ad. 369. i>. Baker, 34 L. J. Ex. 11. (/) Smith j).Widlake, 3 C. P. D. 10, C. A. VOL. 1. 23 353 *219 THE CONTRACT OF LETTING. [BOOK II. continuance of the original demise to the intermediate land- lord, {k) Half-yearly, Quarterly, Monthly, and 'Weekly Hirings.16 — If an annual rent is reserved, the holding is from year to year, although the contract of demise provides that the tenant shall quit at a quarter's notice. Such a contract differs only from the usual lettino- from year to year in the agreement by the parties to re- duce the ordinary six months' notice to quit to three months. But if it is expressly agreed that the tenant is always to be sub- ject to quit at six months' notice given him at any time, this constitutes a half-yearly tenancy, and the lessee will be presumed to hold from six months to six months from the time that he entered as tenant. If he is to hold until one of the parties shall give imto the other three months' notice to quit at the expiration of such notice, the tenancy will be a quarterly tenancy, (l) In the case of a demise of an unfurnished mansion at an annual rent, payable half-yearly or quarterly, the hiring is a hiring from year to year. In the case of cottages or unfurnished apartments in a house demised at a monthly or weekly rent, the presumption is in favor of a monthly or a weekly tenancy. Where a wharf, warehouse, and buildings were let on the terms that a [ * 219 ] quarter's rent * should be paid down on the day of the commencement of the tenancy, and should be continued to be paid in advance during the continuance of the hiring, it was held that this was a quarterly, and not a yearly hiring, (m) There is no objection in law to a tenancy determinable by a week's notice to quit, and a reasonable time being allowed after the expiration of the notice for the tenant to remove his goods, (n) Tenancy at 'Wiii.i'? — If the lessor reserves to himself a right of re-entry at his own will and pleasure, or the lease contains an express stipulation to the effect that the tenancy may be put an end to at the will of either party, the holding is a tenancy at will, (o) The reservation of a yearly or quarterly rent is not (k) Pike V. Eyre, 9 B. & C. 909. («,) Cornish v. Stubbs, L. R. 5 C. P. (l) Doe V. Grafton, 18 Q. B. 496; 21 334; 39 L. J. C. P. 202. L. J. Q. B. 276; Kemp v. Derrett, 3 (o) Richardson iJ.Langridge, 4 Tannt. Camp. 510. 131; Cudlip v. Rundal, i Mod, 12; 3 (m) Wilkinson v. Hall, 4 So. 301; Salk. 156; Bayley ii. Fitzmaurioe, 8 Ell. Towne v. Campbell, 3 C. B. 921. & BI. 679. 854 IS- " See Appendix, Vol. III. CHAP. I.] LANDLORD AND TENANT. * 220 inconsistent with a tenancy at will, {p) A mere permission to occupy creates a tenancy at will. If a tenant for years holds over after the expiration of his lease, or continues in possession pending a treaty for a further lease, {q) or is admitted into pos- session pending a treaty for a purchase, {r) he is strictly a tenant at the will of the landlord, and may be turned out of possession without notice to quit ; but if during the continuance of such tenancy at will the tenant has offered and the landlord has ac- cepted rent for the use of the property, the law infers that a yearly tenancy was meant to be created between them. (5) A minister of a dissenting congregation placed in the possession of a chapel and dwelling-house by trustees in whom the property is vested in trust to permit the chapel and dwelling-house to be used for the purpose of religious worship, is a mere tenant at will to those trustees, and his tenancy is determined instanter by a demand of possession, (t) A tenant at will is entitled to retain possession of the land he holds until the lessor has made a demand of possession, (u) or has intimated, either by ex- press words or by his conduct and actions, his determination to put an end to the tenancy. The holding may be determined by a letter stating that unless the tenant pays the lessor what he owes him, he will without delay take measures for recovering possession of the property, (x) or by a demand of pos- session on the part of the landlord, (y) or by his * entry [ * 220 ] on the land without the tenant's consent and making livery of seisin to another, (z) or exercising acts of ownersliip ; also by his alienation of the reversion ; by the tenant's quitting the premises ; by the death of either of the parties ; by the bank- ruptcy of the lessor ; and, in short, by the doing of any act which amounts to a determination of the will on either side. But a tenant at will cannot determine his tenancy by transferring his (p) Litt. sec. 72; Doe v. Davies, 7 718; 5 M. & R. 616, 752; Revett v. Exch. 91; 21 L. J. Ex. 60; Doe v. Cox, Brown, 2 Moo. & P. 12; 5 Ring. 7. 11 Q. B. 122; 17 L. J. Q. B. 3. («) Eight v. Beard, 13 East, 210. (?) Com. Dig. tit. Estates (H. 1); (x) Doe v. Price, 2 M. & Sc. 464; 9 Doe V. Stennet, 2 Esp. 717. Bing. 356. (r) Doe V. Chamberlaine, 6 M. & W. (y) Locke v. Matthews, 13 C. B. N. s. 14. 753. (s) Clayton v. Blakey, 8 T. R. 3. (z) Ball v. CuUimore, 2 C. M. & R. (0 Doe V. M'Kaeg, 10 B. & C. 721; 120. 5 M. & R. 620; Doe v. Jones, 10 B. & 0. 355 * 221 THE CONTRACT OF LETTING. [BOOK 11. interest to a third party, without notice to his landlord, (a) If the will is determined, and the landlord's consent to the occupa- tion is withdrawn, so as to create an adverse possession, and the landlord afterwards does any act fairly leading to the pre- sumption that he has renewed his consent to the holding, a fresh tenancy at will is created between the parties, (b) Tenancy by Sufiferance.l8 — When the landlord has demanded possession, or has done any act which is tantamount to a deter- mination of the will, or when the tenant holds over at the expira- tion of a lease against the will of the lord, or after the expiration of a notice to cpiit, the tenant is said to be a tenant at sufferance in contradistinction to a tenant at will, (c) The expression, however, is not calculated to give a correct idea of the nature of the holding, and does not seem to have been very happily chosen. Although termed tenant by sufferance, he is understood to hold wrongfully and against the will, and contrary to the per- mission, of the landlord. He has, consequently, no estate or interest at all in the land ; and an action of ejectment may at any time be brought against liim without notice or demand of possession ; and if the lord can get possession peaceably, he is entitled to take and retain possession, and so oust the wrong- doer. ((?) The difference, therefore, between a tenancy at \A'ill and what is called a tenancy by sufferance is tliat in the one case the tenant holds by right, and has an estate or term in the land, precarious though it be, and the relationship of lessor and lessee subsists between tlie parties ; in the other, the tenant holds wrongfully and against the will and permission of the lord, and has no estate at all in the occupied premises. "When a tenancy at sufferance has existed for twenty years (now twelve), the land- lord's right of entry is barred by statute, and the tenant becomes the absolute and complete owner of the property, (e) Leases under Powers. — If a lease granted in the intended exercise of a power of leasing is invalid by reason of [*221] the * non-observance of the terms of the power, such (a) Pinhom •». Souster, 8 Exch. 772. (c) Co. Litt. 57 b. (6) Doe V. Turner, 7 M. & W. 232; (d) Fo.x v. Oakley, Peake's Ad. Ca. Turner 11. Doe, 9 M. & W. 644; Doe v. 214. Thomas, 6 Excli. 854; Randall v. Ste- (r) Doe v. Gower, 21 L. J. Q. B. 57; phens, 23 L. T. E. 211. 37 & 38 Vict. c. 57, sect. 1. 356 18 ggg Appendix, Vol. III. CHAP. I.] LANDLOKD AND TENANT. * 221 lease, if made bona Jide, and if the lessee has entered there- under, is deemed a contract or agreement to grant the lease, and all persons who would have been bound by the lease, if law- fully granted under the power, will be bound by such contract. Acceptance of rent under such invalid lease is a confirmation of the lease as against the person so accepting rent. Leases, also, invalid at the time of the grant thereof, may become valid, if the grantor subsequently acquires the requisite power of leasing. (/) Demise of Tolls. — The 8 & 9 Vict. c. 106, sect. 3, which provides that a lease required by law to be in writing of any tenements, &c., shall be void unless made by deed, does not apply to agreements for letting tolls under the 3 Geo. IV. c. 126. (g) Rights and Liabilities of Lessor and Lessee. — Every lessor binds himself to give possession and not to give the party to whom he demises a mere right to take possession from a wrong- doer by an action of ejectment ; (/i) and every lessee binds him- self to accept possession and pay rent, (i) If a party has agreed to take a house from a particular day, provided certain things are before tlien done by the landlord, and the things are not done, he may decline to go on with the contract, and may refuse to take possession, (k) A lessee who has contracted orally for the hire of realty, and who neglects or refuses to accept posses- sion of the dernised premises, cannot, as we have seen (ante, p.*159),be sued upon such oral agreement for damages for not taking possession, nor upon any oral promise to pay rent, nor for use and occupation. In the case of leases under seal, the law implies from the words " yielding and paying," or any equiva- lent words amounting to a reservation of rent, a covenant on the part of the lessee to pay the rent so reserved, and, in the case of parol leases, a promise to the like effect. (Z) But the liability (/) 12 & 13 Vict. e. 26; 13 Vict, agreements for a lease, see Drury ». Mac- e. 17. namara, 5 Ell. & Bl. 616; 25 L. J. Q. (g) Shepherd v. Hodsraan, 18 Q. B. B. 5. 216; 21 L. J. Q. B. 263. (i) Stanley v. Hayes, 3 Q. B. 105. (A) Coe V. Clay, 3 Moo. & P. 59; 6 (k) Tidey 15. MoUett, ante, p. •179. Bing. HO; Jinks v. Edwards, 11 Exch. (l) Bac. Abr. Liases, 633; Covenant, 775; Neale ». Mackenzie, 1 M. & W. B. 342. 747; Bract, lib. 2, e. 28, fol. 62. As to 357 * 222 TUE CONTRACT OF LETTIKG. [BOOK II. of a lessee upon all express and implied covenants and agree- ments for the payment of rent is dependent upon his being put into possession, or being tendered and offered and afibrded the power and opportunity of taking possession of the demised premises, (m) The quiet enjoyment also by the lessee, as against the lessor and all that come in under him by title, and against others claiming by title paramount, during the time in [ * 222 ] respect of which the rent is claimed to have * accrued due, is a condition precedent to the tenant's liability for the payment of such rent. But the tenant is not released from liability by reason of a mere constructive eviction, (n) or a dis- turbance and interruption from a mere wrong-doer. Covenants for Quiet Eajoyment^ — From the use by a grantor of certain words having a known legal operation in the creation of an estate, the law infers a covenant on the part of such grantor to protect and preserve the estate so created; as if a man by deed demises laud for years, the word " demise " imports or makes a covenant in law for quiet enjoyment, (o) If by the term of a lease the lessor " warrants " the demised premises to the lessee, this amounts to an express covenant for quiet enjoyment during the whole term granted by the lease, {p) Covenants for quiet enjoy- ment are broken if the lessor builds on his own adjoining land so as to darken the lessee's windows, or does anj'thing thereon which creates a nuisance. The erection of a gate across a lane through which the tenant has a way to the demised premises is a breach of a covenant for quiet enjoyment; {q) and so is the placing of any structure upon any part of the demised pre- mises, (r) The covenant is prospective, and is only a covenant that from the time of granting the lease the premises shall not be obstracted by any act done thereafter, (s) or by the probable 1 Covenant for quiet enjoyraent, particularly between landlord and tenant, see Taylor, Land. & Ten. sects. 304-317; Wood, Land. & Ten. e. 34; Mc.idam, Land. & Ten. (2d ed.) 170, 417; Rawle on Covenants ; U. S. Dig. tit. Land- lord and Tenant, sect. 864; also ib. tit. Covenants, sect. 410; Lanigan ■». Kille, 97 Pa. St. 120. (ot) HolgatciT. Kay, 1 C. & K. 341. (?) Andrews r. Paradise, 8 Mod. 319; ()i) Delaney v. Fox, ante, p. * 213. Morris v. Edgington, 3 Taunt. 24. (o) Hull V. City »f London Brewery (r) Kidder v. West, 3 Lev. 1G7. Co., 2 B. & S. 737; 31 L. J. Q. B. 257. (•') Anderson v. Oppenheimer, 5 Q. B. (p) Williams B.BuiTell.ariie, p. » 189. D- 602, C. A. 358 CHAP. I.] LANDLORD AND TENANT. * 223 or necessary consequence of any act done before the granting of the lease, (t) The usual express covenant by the lessor that the lessee shall quietly enjoy, &c., without interruption or disturb- ance by the lessor or any person claiming under him, is not broken by an entry on the tenant by the land-tax collector to distrain for arrears of laud-tax due from the lessor, the disturb- ance not being by a person claiming by title from the lessor, (u) And where a covenant for quiet enjoyment is accompanied by a covenant by the lessee not to use the land for certain purposes, the first covenant does not guarantee to the tenant that he may lawfully use the laud for any purpose not included in the re- strictions in the lease, (x) So also an express covenant that an under-lessee should deliver up all landlord's fixtures at the end of the term, does not raise an implied covenant that he may remove trade fixtures, (y) Whenever a person * demises the surface of land, reserving a right to win [ * 22.3 ] and work minerals, he cannot exercise the right so as to let down or injure the surface; for that would be derogating from his own grant, and would also be a breach of a covenant for quiet eujoyment. (2) Covenants for the Payment of Rent.^ — A covenant for the payment of rent at a specified time, when no place of payment is mentioned, is analogous to a covenant to pay a sum of money in gross on a day certain ; and it is accordingly incumbent on the covenantor to seek out the person to be paid, and pay or tender him the money, (a) If the tenancy is a yearly tenancy, and no time is specified for the payment of the rent, the rent will be due once a year. (0) If the rent is to be paid free of all outgoings, 1 Tenant's covenant to pay rent, see Taylor, Land. & Ten. sects. 369-394 ; Wood, Land. & Ten. sect. 305; U. S. Dig. tit. Landlord and Tenant, IV. 1. (t) Shaw V. Stenton, 2 H. & N. 858. (x) Dennett v. Atherton, L. E. 7 Q. («) Stanley v. Hayes, 3 Q. B. 105. B. 316; 4 L. J. Q. B. 165. As to an implied covenant for title on (y) Porter u. Drew, 5 C. P. D. 143. the part of the lessor, or that he has («) Proud v. Bates, 34 L. J. Ch. 406. power to grant an interest co-extensive As to what is included under the term with that which he assumes to grant, " minerals," see Bell v. Wilson, L. E. 1 see Line v. Stephenson, 7 Sc. 69; Bandy Ch. 303; 34 L. J. Ch. 572. V. Cartwright, 8 Exch. 913; Stranks v. (a) Haldane v. Johnson, 8 Exch. St. John, L. K. 2 C. P. 376; 36 L. J. 689. 0. P. 118. (6) CoUett V. Curling, 10 Q. B. 785. 359 * 224 THE CONTRACT OF LETTING. [BOOK II. it must be paid free of land-tax and tithe commutation rent- charge, (c) Where the lessor let his land at a rent payable quar- terly, and afterwards mortgaged it, but remained in possession, and obtained from the lessee, who had no notice of the mortgage, a year's rent in advance, it was held that the payment of the rent before it became due was not a good payment as against the mortgagee, who, before the rent became due, gave the lessee notice to pay the rent to him. (d) Covenants not to " Let, Set, or Demise," ^ restrain an assign- ment ; (c) and covenants not to " let or assign," (/) or not to " assign or otherwise part with " the demised premises, (g) restrain an underlease ; but a covenant not to " grant any underlease, or let, assign, or otherwise part with the demised premises or any part thereof," is not broken by taking in a lodger who has the exclusive possession of the room he occupies, (h) Where a lessee took a person into partnership, and agreed that he should have the exclusive use of a back chamber and some other parts of the demised premises and the joint use of the rest, it was held that the covenant had been broken, and that the right to re-enter had accrued, (i) And in the case of a lease to two partners, an assignment by one partner of his undivided moiety of the lease to the other partner is a breach of a covenant not to assign, (k) A covenant by a lessee that he will not let or underlet for more than a year does not prevent him from granting leases [*224] to commence at a "future day. (Q A devise of the term to a stranger is an assignment within the meaning of the proviso or covenant, but not a devise to the lessee's own 1 Tenant's covenant not to assign or sublet, see Taylor, Land. & Ten. sects. 402- 413; Wood, Land. & Ten. c. 33 ; McAdara, L. & T. {'2d ed.) 172, 174; 16 Am. L. Eev. 16; U. S. Dig. tit. Landlord and Tenant, III.; also Barhydt i). Burgess, 46 Iowa, 476; Fifty Associates v. Grace, 125 Mass. 161; Ebling v, Fuylein, 2 Mo. App. 252; Taylor v. De Bus, 31 Ohio St. 468; and on the distinction between an assignment and subletting, McNeil v. Kendall, 128 Mass. 245. (c) Parish!). Sleeman, 1 De G. F. & J. (3) Doe v. "Worsley, 1 Campb. 20. 326; 29 L. J. Ch. 96; Sweet v. Seager, (A) Doe v. Laming, 4 Campb. 77. 2 C. B. N. s. 119. (i) Doe V. Sales, 1 M. & S. 297. {O) De NichoUs v. Saunders, L. R. (k) See Corporation of Bristol D.West- 5 C. P. 689; 39 L. J. C. P. 297; Cookw. cott, 12 Ch. D. 461; Varley r. Coppard, Guerra, L. E. 7 C. P. 132; 41 L. J. C. P. L. R. 7 C. P. 505. 89- (I) Croft V. Lumley, 6 H. L. C. 737; («) GreenawayD.Adani,s, 12Ves. 395. 27 L. J. Q. B. 330. (/) Roe !'. Harrison, 2 T. R. 425. 360 CHAP. I.] LANDLORD AND TENANT. * 224 execiitor, {m) nor an assignment by act and operation of law, («) or by the act of God, or an assignment by the sheriff under an execution, unless the execution has been obtained by collusion with the creditor in fraud of the covenant, (o) If the lessee does assign or underlet, notwithstanding his covenant, the assignment or underlease is good, and the lessee is only liable to an action on his covenant, {p) unless there is a proviso in the original lease for re-entry in case of a breach of the covenant, {q) Where the lessee covenants not to assign without the consent of the lessor, "such consent not to be arbitrarily withheld," these words do not amount to a covenant by the lessor to give his consent ; but an arbitrary refusal would leave the lessee at liberty to assign with- out consent. (?■) And where the lessor's consent is not to be withheld from any assignment or underlease to a respectable and responsible person, an assignment or underlease to such per- son does not require lessor's consent, (s) Where a lessee under such a covenant contracted to assign subject to his landlord's approval, and he would not give leave, it was held that he was not bound to take legal proceedings to compel his landlord to consent, but might consider his contract with the third party at an end. (t) A covenant not to assign is not a usual covenant, (m) Non-execution of the Lease by the Lessee.^ — A person who 1 See Taylor, Land. &Ten. sects. 166-171; Wood, Land. & Ten. sects. 217-220: U. S. Dig. tit. Landlord and Tenant, sects. 692-726. A lease written and recorded by the lessee, who took possession thereunder, — Held, to be sufficiently executed by him, though he did not subscribe it. Traylor i>.Cabanne, 8 Mo. App. 131. Execution by two of the three members of the committee of a benevolent society, with no words to indicate in whose behalf or in what capacity they signed, — Held, sufficient. Carroll v. St. Johns, &c. Relief Society, 125 Mass. 565. Execution by lessee's agent, — Held, insufficient. Kiersted v. Orange, &c. E. R. Co., 69 N. Y. 343. A lease for ninety-nine years, renewable forever, if attested by but one witness, gives lessee only an equitable title. Abbott v. Bosworth, 36 Ohio St. 605. Sealing by corporation, Crawford v. Longstreet, 43 IS. J. L. 325. (m) Bao. Abr. Lease, T. Lehmannt). McArthiir, L. R. 3 Ch. 496; (n) Goring v. Warner, 7 Vin. Abr. Sear v. House Property Soc, 16 Ch. D. 85, pi. 9 ; Doe u. Smith, 5 Taunt. 387. 795. (s) Hyde v. Warden, 3 Ex. D. 72, (o) Doe V. Carter, 8 T. E. 57, 300. C. A. (,p) Paul v. Nurse, 8 B. & C. 486. (() Lehmann v. McArthur, supra. [q) Roe V. Harrison, 2 T. R. 428. («) Hampshire v. Wickens, 7 Ch. D. (r) Treloari). Bigge, L. R. 9 Ex. 151; 555; Wilson v. Redhead, 28 W. R. 795; 361 * 225 THE CONTKACT OF LETTING. [BOOK II. has neither sealed and delivered an indenture of lease, nor en- tered and taken possession under it, cannot be made responsible upon the covenants contained in the indenture; but if he en- ters and takes possession by force of the lease, he is deemed in law to have covenanted to hold upon the terms of the indenture and to observe the conditions of the lease, and the lessor, there- fore, may distrain or bring an action for the arrears of rent, (x) For every grantor of an estate may annex his own terms and conditions to the grant, which will constitute a covenant annexed to the estate, so that whosoever accepts the estate will be bound by the covenant, although he has not sealed and delivered any deed. If land is leased to two for a term of years, and [*225] one puts his seal and the * other agrees to this lease, and enters and takes the profits ■\\ith him, he shall be charged to paj' the rent, though he has not put his seal to the deed ; but if there is a condition comprised in tlie deed which is not parcel of the lease, but a condition in gross, if he does not put his seal to the deed, though he is a party to the lease, he is not a party to the condition, (y) "Where three \vere enfeoffed by deed, and there were several covenants in the deed on the part of the feoffees, and two of the feoffees only sealed the deed, and the third entered and agreed to the estate conveyed by the deed, he was held bound in a writ of covenant. {£) "Where three wind- mills were demised by letters-patent under seal, which letters- patent contained a clause to the effect that the lessee and his a.ssignees should repair and maintain the windmills during the term, and yield them up in good condition at the expiration thereof, and the lessee entered under the grant and took posses- sion of the windmills, it was held that there resulted from the acceptance of the estate an express covenant to repair, which was annexed to the term granted, and ran with the land, and bound both the lessee and his assignees by reason of the jDrivity of estate, (a) Where a lessee entered into possession of a house Smith and Soden's Landlord and Tenant, (i/) 38 Ed. III., p. 8; Bro. Abr. 2ded. 87. (Dette) pL 80; Fitz. Abr. (Dettc) pL (a:) Brett 1.. Cumberland, 2 Eoll. 117; Co. Litt. 231 b. Rep. 63; Litt. sect. 374, 58; Jlayor, &c. (;) 2 Eoll. Rep. 62. of Lyme 11. Henley, 1 Bing. N. C. 237; (a) Brett v. Cmuberland, 2 Roll. Gregg f. Coates, 23 Beav. 39. Rep. 63. 362 CHAP. I.] LANDLORD AND TENANT. * 226 under an agreement to repair, and paid rent, and the lessor sold the estate and assigned all his interest to the plaintiff, and the lessee continued to occupy and paid rent to the plaintiff, it was held that the lessee must be presumed, in the absence of evi- dence to the contrary, to have agreed to continue to hold of the plaintiff on the same terms as he held of the original lessor, and that he was therefore responsible to the plaintiff' for a breach of his agreement to repair, (b) Non-execution of the Lease by the Lessor.^ — It is said that " if an indenture of lease be sealed ouly on the part of the lessee, and not on the part of the lessor, nihil operat, neither in respect of the interest nor in respect of the covenants; for the covenants depend upon the lease, and if there is no lease there is no cove- nant ; for if the lease had been made and afterwards surrendered, all the covenants had been void."(c) Where an indenture of demise for the term of eleven years, containing covenants to pay rent and repair, was executed by the lessee alone, and the latter entered and took possession and paid rent for several years, and the lessor assigned his reversion without ever having executed the lease, it was held that the assignee of the reversion could not sue upon any of the covenants of the lease, as the lease for eleven years to which tliey were annexed had never been cre- ated; that the only *reversion which could carry with [*226] it the right to sue upon the covenant was a reversion expectant upon the determination of the term for eleven years, which reversion had never been in existence, by reason of the non-execution of the lease by the lessor, (d) But as between the original parties, where a privity of contract exists between them, 1 See Taylor, Land. & Ten. sects. 166-171; "Wood, Land. & Ten. sects. 217- 220; U. S. Dig. tit. Landlord and Tenant, sects. 692-726. Signature by coraptroller of municipal corporation, with his name and official title, — Held, insufficient. Carleton v. Darcy, 46 N. Y. Superior Ct. 484. Execution by agent, within the scope of his authority, may be enforced by the principal. So held, even where the name of the lessors was followed by the words "agents as landlords." Nicoll v. Burke, 78 N. Y. 580. A lease executed by the members of a firm in their firm name is their con- tract, though the lessor is described as a company, and the members of this firm constituted the company. Kantsky v. Atwood, 79 111. 204. (6) Arden v. Sullivan, 14 Q. B. 832. (d) Cardwell v. Lucas, 2 M. & "W. (c) Soprani «. Skurro, Yelv. 18. 123. 363 * 226 THE CONTRACT OF LETTING. [BOOK II. the lessee may, under certain circumstances, be held liable upon the covenants contained in the indenture, though the lease has not been executed by the lessor and the term created. It has been said tliat every lease must be construed in connection with surrounding circumstances, and that a lessee may, by entering upon and taking possession of tenements under an indenture sealed by him, and by dispensing with the execution of the indenture by the lessor, render himself liable to be sued upon his covenants as independent covenants, on the ground that a party may waive a condition in his favor and dispense with its performance; and that if a lessee executes his part of an inden- ture of lease, and enters and takes possession of the demised premises, and has the use of them, and gathers all the produce and profits of the soil for the whole term intended to be granted without ever having required the lessor to execute the indenture, he ought in justice to be deemed to have waived his right to treat the execution of the lease by the lessor as a condition pre- cedent to his liability upon his covenants; and the Court of Queen's Bench has held that a lessee who has executed an inden- ture of demise containing a covenant to repair, and has entered and enjoyed for the whole term intended to be granted, is liable on his covenant, though the lease has never been executed by the lessor, and that the covenant becomes under such circumstances an independent covenant within the rule laid down in Comyn's Digest ; (c) that if one party executes his part of an indenture, it shall be his deed, though the other does not execute his part. (/) But the Court of Exchequer has held that entry and taking of possession by lessee before execution of lease by lessor do not render the covenants to pay rent and repair independent. (17) Concealment of Latent Defects.^ — By the civil and continental law, "the lessor is bound to make known to the lessee all defects in the thing which he lets, and to explain everything that may give occasion to error or mistake." (h) But by our law, in con- tracts for the letting and hiring of realty, the lessor is not bound 1 No implied warranty, Edwards v. N. Y. & Harlem R. E. Co., 25 Hun, 634. (e) Fait (C), 2. (<,) Pitman v. Woodbury, 3 Exch. 12; (/) Cooch V. Goodman, 2 Q. B. 599; Swatman v. Ambler, 8 ib. 80; and see Littledale, J., 1 Ad. k K 65; Hughes v. How v. Greek, 34 L. J. Ex. 4. Clark, 10 C. B. 905. (h) Domat. liv. 1, tit. 3, sects. 3, 10. 364 CHAP. I.] LANDLORD AND TENANT. * 227 to disclose to the lessee latent defects interferinn; with the use and * enjoyment of the property let to hire, (i) [*227] A lessor of a house, for example, who knows that the house is in a ruinous and dangerous state and unfit for occupa- tion, is not bound to disclose the fact to his lessee at the time that he grants the lease. (A;) 19 Having executed the lease, and put the lessee into possession of the demised premises, or placed them at his disposal, and clothed him with the legal title to the possession and occupation thereof for the term granted by the lease, the lessor has done all that is necessary for him to do to entitle himself to the rent at the time that it is made due and payable; he does not, in the case of demises of realty, warrant that the premises are, at the time of the demise, or that they shall continue to be during the term, in any particular state or condition, or fit for any par- ticular purpose; and the lessee, therefore, is bound to pay his rent, although the subject-matter of the demise is not fit for the pur- pose for which he required it, and although he may have had no beneficial use or enjoyment of it. If indeed the lessor has been guilty of any fraudulent concealment of defects which ought in good faith to have been disclosed, or has resorted to any misrep- resentation calculated to mislead the lessee in some important particular as to the condition of the demised premises, the con- tract will be void and the lessee will be discharged from the rent ; but in the absence of all fraud and deceit, he is bound by his express covenant or contract, and must pay his rent, altliough he has not had that beneficial use and enjoyment of the demised premises which was anticipated. Thus there is no implied warranty on the part of a lessor who lets land for agricultural purposes that no noxious plants are growing on the demised premises. (Z) And where the defendant took the eatage of a meadow from the plaintiff for the term of six months, at a rent of £40, and turned fifteen head of cattle into the meadow, eight of whom died from the poisonous effects of a quantity of refuse paint which had been placed on a manure heap, and had inad- {^) Hart v. Windsor, 12 M. & W. 68; (I) Erskine v. Adeane, L. R. 8 Ch. Cornfoot v. Fowke, 6 M. & "W. SUS. 756; 42 L. J. Ch. 835. (k) Ketiteav. Earl Cadogan, 10 C. B. 591; 20 L. J. C. P. 76. 19 See Appendix, Vol. UI. 365 * 228 THE CONTRACT OF LETTING. [BOOK U. vertently been spread over the grass prior to the defendant's occupation, and had afterwards been eaten by the cattle, and the defendant then took his stock off the land and tendered back the possession of the meadow to the plaintiff, which she refused to receive ; it was held that the defendant was liable for the rent at the time it became due, although the eddish at the time of the demise was wholly unfit for the purpose for which it was taken, and the defendant had not had any beneficial use or enjoyment of it. (m) [* 228 ] * Demises of Uninhabitable Houses ^ — Rooms infested with Bugs. — Where an action was brought for the non- payment of the rent of a house, and the defendant pleaded that the house was demised to him for the purpose of his inhabiting the same, and that at the time of the demise and of his taking possession, and from thence until he quitted, the house was unfit for habitation, and he could not dwell therein or have any bene- ficial use or occupation thereof, by reason of its being greatly infested with bugs, without any default on his part, and that before the rent became due, and as soon as he discovered the condition of the tenement, he quitted it, and gave notice to the plaintiff, and tendered him the possession thereof; it was held that the plea was no answer to the action, inasmuch as the law in the case of demises of unfurnished houses implies no war- ranty or engagement on the part of the lessor that the house is at the time of the demise, or at the commencement of the term, in a fit and proper state and condition for habitation, (n) Payment of Rent. — Although, therefore, houses become ruin- ous and fall down, and buildings, fences, and superstructures erected upon the soil, and crops growing thereon, be destroyed by floods, or burned by lightning or accidental fire, or be thrown down by enemies, yet is the tenant liable to pay the rent so long as the land remains to him, and his legal title to the occupation 1 Compare Minor v. Sharon, 112 Mass. 477; Fash v. Kavanagh, 24 How. Pr. 347; Jaffe v. Harteaii, 56 N. Y. 126; McAlpin v. Powell, 70 N. Y. 126; 1 Abb. N. Cas. 427. (m) Sutton V. Temple, 12 M. & "W. (n) Hart ij. Windsor, 12 M. & W. 68; 52; 27 Hen. VI. (Trin.Term), fol. 10, pi. Manchester Warehouse Co. v. CaiT, 5 C. 6; Hil. Term, 14 Hen. IV., fol. 27, pi. P. D. 507; as to bugs in furnished lodg- 35; Bro. Abr. (Dette) pi. 18, fol. 220. ings, see Smith v. Marables, p. *294. o 66 CHAP. I.] LANDLORD AND TENANT. * 229 and use thereof continues, (o) If the landlord is bound by cus- tom, or has entered into an express covenant to repair and uphold a house demised by him, and the lessee covenants to pay rent, the covenants are independent covenants, and the repairing and upholding of the house by the lessor is not a condition precedent to the liability of tlie lessee upon his covenant. Q;) Payment of Rent. — Exception of Damage by Fire. — If the lessee has covenanted to pay rent, " damage by fire excepted," and part of the demised premises is destroyed or injured by fire, the whole of the rent is not thereby suspended, but the tenant is entitled to a reasonal:)le abatement, (q) And if the lessee cove- nants to pay rent, and also to repair, with an express exception of casualties by fire and tempest, the exception is confined to the covenant to repair, and does not qualify or affect the liability upon *the covenant to pay rent, unless it has [*229] been extended thereto by express words, (r) Payment of Rent — Extinction and Suspension of the Rent by Eviction. — If the tenant loses the benefit of the enjoyment of any portion of the demised premises by the act of the landlord, the rent is thereby suspended ; but the act must be something of a grave and permanent character, dispossessing the tenant, and not a mere temporary trespass ; (s) and there must be an actual dispossession of the tenant, and not a mere constructive eviction, (t) The tenant is not released from liability by reason of an eviction by a mere wrong-doer and trespasser who has no title at all to the possession of the demised premises. Thus where an action of debt was brought for three years' arrears of rent reserved upon a lease of a farm, and the defendant pleaded that Prince Eupert, an alien and enemy of the king, invaded (o) Carter M. Cummina, cited 1 Ch. C. Farnsworth, 8 Sc. N. E. 307; 7 M. & 84; Pindar v. Ainsley, cited 1 T. R. Gr. 584. 312; Bayne v. Walker, 3 Dow. 233; (?) Bennett v. Ireland, E. B. & E. Leeds ». Cheetham, 1 Sim. 146; Arden 326. V. Pullen, 10 M. & W. 321; Marquis of (r) Monki). Cooper, 2 Str. 763; Bel- Bute V. Thompson, 13 M. & W. 493, four v. Weston, 1 T. R. 310. 494; Lofi't V. Dennis, 1 Ell. & Ell. 481; (s) Upton v. Townend, 17 C. B. 64; 28 L. J. Q. B. 168; Surplice v. Earns- Carpenter v. Parker, 3 C. B. N. s. 238. worth, 7 M. & Gr. 579; 8 Sc. N. R. {t) Delaney v. Fox, ante, p. »213; 307. Wheeler r. SteveiBOn, 30 L. J. Ex. 46; (p) T. Term, 27 Hen.VI., fol. 10, pi. 6 H. & N. 158. 6; Bro. Abr. (Dette) pi. 18; Sui-pliceu. 367 * 230 THE CONTRACT OF LETTING. [BOOK II. the realm, and with divers armed men did enter upon the de- mised premises, and expel him therefrom, and keep him out, so that he could not enjoy the lands during the term, "it was resolved that the matter of the plea was insufficient." And this distinction was taken, that wliere the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him ; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, not- withstanding any accident by inevitable necessity, because he might have provided against it by his contract. Another rea- son was added, that as the lessee is to have the advantage of casual profits, he must run the hazard of casual losses, and not lay the whole burthen of them upon his lessor, (m) So where the parliament, during the civil wars, took possession of a house which had been demised to a lessee for a term of years, and turned it into an hospital for sick and maimed soldiers, and so prevented the lessee from having any beneficial occupation thereof for several years, notwithstanding which the lessor broxight an action of debt for the rent, no question appears to have been made but that the lessee was bound at common law to make good the rent ; and the lessee consequently brought his bill in equity for relief, on the ground that he had no remedy over against the wrong-doer, because it was an act of force in the parliament which had been pardoned by the act of oblivion ; but it does not appear that he got relief even in equity. (;r) [*230] * Payment of Rent. Eviction by Railvsray Companies under Statutory Powers. — If the tenant is lawfully evicted by a railway company under the powers of its act, the tenant is discharged from the accruing rent, but not from rent that was due and in arrear at the time of the eviction. Where a yearly tenant received notice from a railway company to give (u) Paradine v. Jane, Aleyn, 27; sty. Ca. 8i; as to proof of expulsion, see 47; Barrett v. Dutton, 4 Campb. 333; Mayor, &c. of Poole v. Whitt, 15 M. & Maryon v. Carter, 4 C. & P. 295; Hills W. 577. As to evidence of eviction, see V. Sughrue, 15 M. & W. 253; Jervis v. Morrison v. Chadwick, 7 C. B. 283; 18 Tomkinson, 1 H. & N. 195; Brown v. L. J. C. P. 193; Henderson v. Mears, Royal Insurance Soc, 28 L. J. Q. B. 28 L. J. Q. B. 305; Wheeler v. Stever- 277. son, 6 H. & N. 158; 30 L. J. Ex. 46. (x) Harrison o. Lord North, 1 Ch. 368 CHAP. I.J LANDLOUD AND TENANT. * 230 up possession of certain land within six months from the notice, and the notice expired in the middle of a half year, and the tenant gave np possession to the company without obtaining or requiring compensation in respect of his unexpired term and interest in the premises, it was held that he was liable to his landlord for the whole of the half-year's rent, {y) When a cer- tain portion only of lands or tenements held by tenants or les- sees has been taken by a railway company under the powers of its act, the rent is to be apportioned ; and the rent to be paid by the tenant for the residue of the lands not taken by the com- pany must be settled by agreement of the parties, or by two justices, or by a jury, (z) Payment of Rent. Assignment of Reversion. — If the lessor, after granting the lease, sells and conveys all his estate and interest in the demised premises, he has no longer any right to the accruing rent. The rent passes with the reversion to the lessor's grantee without any attornment on the part of the ten- ant; but the tenant is not to be prejudiced or damaged by pay- ment of rent to the lessor, or by breach of any condition for non-payment- of rent before notice of the transfer and convey- ance has been given to him by the grantee, (a) Prepayment is a good discharge for all rent which has become due before notice of the transfer (&), but not for rent \\'hich becomes due after notice, (c) Payment of G-round-rent by the Tenant. Deduction thereof from the Tenant's Rent. — The immediate landlord is by the common law bound to protect his tenant from all paramount claims ; and when, therefore, the tenant is compelled, in order to protect himself in the enjoyment of the land in respect of which his rent is payable, to make payments which ought, as between himself and his landlord, to have been made by the latter, he is impliedly authorized to make the payment on the land- lord's behalf; and the courts have held such payments to be (y) "Wainwright v. Ramsden, 5 M. & (S) Cook v. Guerra, L. E. 7 C. P. W. 602; post, Notice to Quit, p. * 269. 132; 41 L. J. C. P. 89. (z) 8 &9 Vict. u. 18, sect. 119; Bac. (c) De Nicholls v. Saunders, L. E. Abr. Rent (M); /w re Ware, 9 Exch. 395. 5 C. P. 589; 39 L. J. C. P. 297; ante, (a) i Anne, c. 16, sects. 9, 10. See p. *223. Allcock V. Moorhouse, 9 Q. B. D. 336. VOL. I. 24 369 * 231 THE CONTRACT OF LETTING. [BOOK II. [ *231 ] payments in satisfaction of * rent due, or accruing due, to the immediate landlord. Thus a tenant who has been compelled by a superior landlord, or other incumbrancer having a title paramount to that of his immediate landlord, to pay sums due for ground-rent or other like charges, may treat such payments as payments in satisfaction or part satisfaction of rent due to his immediate landlord, {d) But the tenant should deduct these payments from the next rent that becomes due, or from the rent of the current year ; for if he allows several pay- ments of rent to pass without giving his immediate landlord notice of the payment, and claiming the deduction, he will lose his right to deduct the money he has paid from the rent, (c) Payments of money on account of the landlord, not charged upon the demised premises and leviable upon the chattels of the occupier, cannot be given in evidence in satisfaction and dis- charge of the rent, unless they were expressly directed or sanc- tioned by the. landlord. (/) The tithe commutation acts do not impose any personal pliability on the landlord to pay the tithe rent-charge, {g) Deduction of Income-tax, Land-tax, Sewrers-rate, and other Outgoings from the Rent.^ — -As regards land-ta.x, paviug-rates, and property and income-tax charged on land demised to a ten- ant, {h) the tenant ought to deduct the tax or rate out of the next rent that becomes due. If he fails to do this, he cannot deduct it from subsequent rent, nor can he recover it by action from the landlord, {i) If the landlord is entitled to be relieved ^ A tenant, being bound by a covenant in his lease to pay all assessments, paid one which was regular on the fare of the proceedings, but which the landlord was contesting as in^'alid. The landlord ultimately prevailed, and the assessment was set aside. Held (following Peyser u. Mayor, etc. of New York, 70 N. Y. 497), that the tenant was entitled to rei^over back from the city the money he had paid. Pursell V. New York, 85 N. Y. 330. (cT) Graham ii. Allsopp, 3 Exch. 198 ; {g) Griffinhoofe v. Daubuz, 4 E. & B. Taylor v. Zamira, 6 Taunt. 524 ; Jones 235. V. Morris, 3 Exch. 742. (h) 5 & 6 Vict. c. 35, sects. 60, 103; {c) Andrew v. Hancock, 3 Moore, 16 & 17 Vict. c. 34, sect. 40; 27 & 28 278 ; Spragg v. Hammond, 4 Moore, Vict. l. 18, sect. 15. 440. (i) Andrew v. Hancock, xvpra : if) Davies v. Stacey, 12 Ad. & E. Denby v. Moore, 1 B. & Aid. 129 ; 511. Gumming v. Bedborough, 15 M. & W. 438. 370 CHAP. I.] LANDLORD AND TENANT. * 232 from the assessment, it is his duty to take the necessary steps for the purpose ; and if, before he has done this, the assessment is made on the occupier, and the tax paid, it may be deducted from the rent, although at the time the deduction is made the landlord has obtained his exemption from the tax. (k) The land- lord is in general liable to pay taxes in proportion to the rent reserved, and not to the improved value. Where, thereibre, a tenant built on land demised to him, and raised the animal value from £60 to £300, it was held that he was only entitled to deduct sewers-rate and land-tax upon the original rent, and that he was himself properly chargeable in respect of the im- proved value. (I) Where the lessor was also the owner of the tithe rent-charge upon the land, it was held that a cov- enant to pay " all taxes and assessments * whatsoever [ * 232 ] for or in respect of the demised premises, save and except the level-tax, property-tax, and land-tax," did not include the tithe rent-charge, and that the lessee was not bound to pay it. {m) Where the lessee covenanted to pay the rent without any deduction, &c., and further, " to pay all manner of taxes, &c., charges and impositions whatever, &c., imposed by the au- thority of parliament or otherwise howsoever," and the lessor was compelled under an act to abate a nuisance from bad drain- age, it was held that he was not entitled to call upon the lessee to pay. (w) An agreement by the landlord to repay the tenant all sums which he shall pay for the landlord's property-tax if the tenant will pay his rent in full without any deduction of landlord's property-tax, is good notwithstanding the provisions of the statute, (o) The Roman law, in its exposition and enforcement of leases, was much more favorable to the tenant than our own law. There the enjoyment of the thing for the use of which the rent was agreed to be paid was a condition precedent to the lessor's right (k) Swatmaii v. Ambler, 24 L. J. Ex. ley v. Hudson, 4 C. P. D. 367. But 185. see Budd v. Marshall, 5 C. P. D. 481. (I) Smith V. Humble, 15 C. B. 321. (o) 5 & 6 Vict. c. 35, sects. 60, 103; (m) Jeffrey v. Neale, L. R. 6 C. P. Lamb v. Brewster, 4 Q. B. D. 220, 0. 240; 40 L. J. C. P. 191. A. 607; as to agreements to pay rates, (w) Rawlings v. Briggs, 3 C. P. D. including a rate under 37 & 38 Vict. c. 368, distinguishing Thompson v. Lap- 54, sect. 3 (rating of mines), see Chal- worth, L. R. 3 C. P. 149; see also Hart- oner v. Bolckow, 3 Ap. Cas. 933. 371 *233 THE CONTRACT OF LETTING. [BOOK II. to demand the rent. If, for example, the tenant ■n'as evicted by- irresistible force, and kept out of possession, without any default on his own part, he was discharged from the rent, whether the eviction was the act of tlie lessor himself, or of persons having title, or the act of mere wrong-doers. If a house demised to a tenant for habitation became ruinous and uninhabitable ; if the windows were blocked up or darkened, and the tenant deprived of light and air by the raising of the roof of an adjoining house, or his use and enjoyment of the property were interfered with by a nuisance which he had no means of abating, he might quit the demised premises, vacate his lease, and refuse further pay- ment of rent, {p) If pasture land was demised for the purpose of feeding cattle, and poisonous herbs grew up and destroyed the beasts, the landlord lost his right to the rent, {q) If lands were granted to farm for the term of one year only, and the tenant by reason of some inevitable accident, such as a volcanic eruption, an earthquake, a frost, a hail-storm, an inundation, or a hostile incursion, lost the whole of the produce of the soil, and reaped nothing, he was discharged from his rent, (r) If a par- [ * 233 ] tial injury only had * been sustained, — if, for instance, the growing crops were damaged by an extraordinary drought, or tlie unusual inclemency of the weather, — the lessee was entitled to a proportionable abatement of his rent. But in order to sustain his claim for an abatement, he was bound to show that the loss arose from some unusual occurrence not reasonably to have been expected and contemplated by the parties at the time of the making of the contract. He was never granted an abate- ment of rent in respect of losses in any way attributable to his own want of diligence or skill, nor in respect of any accident which might reasonably have been foreseen and guarded against, nor for inconsiderable and trifling losses, (s) And in all leases for terms of years, the good years were to be taken with the bad years, so that the lessee could not claim to be excused from rent (j>)- Dig. lib. 19, tit. 2, lex 15, sect, pensionem non petes." — Dig. lib. 19, 7, sect. 1; lex 33, lex 25, sect. 2; Cod. tit. 2, lex 19, sect. 1. civ. 1726, 1727. (r) lb. lex 15, sects. 1, 2. (q) "Si saltum pascuum locasti in (s) Domat (Louage), No. 4, 5, 6 ; quo herba mala nascebatur, et pecora vel Tothier (Louage), No. 153; Dig. lib. 19, demortua sunt, vel deteriora facta, quod tit. 2, lex 15, sect. 2. interest pi-Eestabitur, si scisti si ignorasti, 372 CHAP. I.] LANDLORD AND TENANT. * 234 in respect of the total loss of the harvest in any one year of his tenancy, but could only claim the abatement towards the expira- tion of the term, upon a fair average of profit and loss, (t) Right to distrain for Kent. — The law relating to distress will be found at the end of the present chapter, but the right to dis- train for rent is here stated generally. The lessor's riglit to enter in person or by deputy upon the demised premises, and distrain the goods and chattels of the tenant for rent or services in arrear, has existed in this country from so early a period, " that we have no memorial of its original with us." (m) It was doubtless de- rived from the Eoman law, which considered all the chattels and movables and personal property that the tenant brought upon the demised premises, and all the crops and fruits and produce of the soil growing or stored upon the land, to be hypothecated to the lessor as a security for the due payment of the rent, so that the lessor might, if rent was due and unpaid, enter upon the demised premises and take possession of such goods and chattels and produce, and hold the same as a security for the amount due. (x) This power of entering upon the land and taking corporal possession of the pledge is impliedly accorded to the lessor on every demise of realt}' where there is an express reservation of, or an agreement by the tenant to pay, a fixed, ascertained rent or service, (y) If there has been merely a per- missive occupation of the property, without any previous pay- ment of rent referable to some certain term of hiring or to some * definite portion of a year, the lessor has no [ * 234 ] right of entry upon the land nor power to distrain, but must proceed by way of action upon the implied promise of the tenant to pay a fair and reasonable compensation for the permis- siv^e use and enjoyment of property, (z) By the 34 & 35 Vict. 0. 79, the goods of lodgers (a) are protected against distresses for rent due to the superior landlord ; and by the 35 & 36 Vict. (t) lb. s. i; lex 55, s. 1; Instit. 1. 3, 20, tit. 2, 4, 7; Cod. lib. 8, tit. 15, lex tit. 25, s. 3; Cod. 1. 4, tit. 66, lex 1. 3; Bract, lib. 2, fol. 62, cap. 28. (u) Gilbert on Distress; 2 Bro. Abr. (y) Litt. s. 214. (Distress), fol. 252; Bradby, 2. (s) Dunk v. Hunter, 5 B. & Aid. 325. (x) " In prasdiis rusticis fructus qui (a) Anunder-tenant may bealodger. ibi nascuntur tacite intelliguntur pignori Pliillips v. Henderson, 3 C. P. D. 26. esse domino fundi locati, etiamsi nom- What is a lodger, is a question of fact, inatim id non conveneiit." — Dig. lib. Ness v. Stevenson, 9 Q. B. D. 245. 37 o *235 THE CONTRACT OF LETTING. [BOOK II. c. 50, railway rolling-stock is protected from distress when on the line. Eztinguishmeut of the Right to distrain by an Assignment of the Reversion. — If the lessor, after the making of the demise, conveys the property to a purchaser, he has no power to distrain for the rent that became due prior to the execution of the con- veyance, as he is no longer possessed of the reversion expectant upon the determination of the lease, (b) Neither can the pur- chaser distrain for such rent ; for it was a fruit fallen from the reversion at the time of the conveyance of the demised premises to him. (c) If, however, the conveyance was preceded by the ordinary agreement between vendor and purchaser vesting the equitable estate in the latter prior to the rent becoming due, the purchaser would be entitled to recover the rent by action. (.■) Cannock v. Jones, 3 Exch. 233. Mumyard, 1 Mood. & Rob. 336. (/) 40 Edw. III. fol. 6, pi. 11; Para- (q) Payne 1). Haine, 16 M. &. W. 545; dine, v. Jane, Aleyn. 27; 2 Saund. 421 a 16 L. J. Ex. 130. (2); Dyer, 33 a, pi. 10; Brecknock Com- (r) Neale v. Ratcliff, 15 Q. B. 916; pany v. Pritchard, 6 T. R. 750; Bnllock 20 L. J. Q. B. 130; Coward v. (irc^oyy, v. Dommitt, ib. 650; Chesterfield V. Bol- 36 L. J. C. P. 1; L. R. 2 C. P. 153. ton, 2 Com. Rep. 627. 380 CHAP. I.] LANDLORD AND TENANT. * 240 the premises at the time of the execution of the lease, (u) unless it appears that the land was demised for building purposes, and that the erection of buildings by the lessee during tlie term was contemplated by the parties, and that the covenant was meant to extend to buildings thereafter to be erected, (a) Where a lease, executed on the 9th of November, contained a covenant on the part of the lessee to repair, and the tenant had taken possession and pulled down buildings in the preceding month of June, it was held that he could not be made respon- sible in an action of covenant, as the lease was not then executed, * although the habendum of the lease stated [*240] that the premises were to be holden from the preceding 22d of June. The habendum marked only the duration of the tenant's interest, and could not operate retrospectively as a grant, (y) If the lease is under seal, and the tenant has bound himself by covenant to repair, and the landlord assigns his inter- est, the assignee is entitled, as we shall see {post, p. * 1273), to sue upon the covenant, (s) A covenant to put into repair is not a continuing covenant; (a) but covenants to keep in repair are covenants which run with the land, and are continuing covenants to the end of the term. (&) And the recovery of damages for a breach of them is no bar to an action for a subsequent breach, but only matter in mitigation of damages, (c) They extend to all additions and enlargements of structures existing at the time of the demise, but not to detached, independent buildings erected after the making of the lease, (d) If the landlord has evicted the tenant from part of the demised premises, the tenancy is not, as we have seen, thereby determined, and the tenant is not dis- charged from the performance of a covenant to repair, (f) The landlord is entitled to recover damages for breach of a contract (m) Cornish v. Cleife, 3 H. & C. 446; {b) Martin u. Clue, 22 L. J. Q. B. 34 L. J. Ex. 19. 147. (x) Dowse V. Cale, 2 Vent. 136; 3 (c) Coward i). Gregory, L. E. 2 C. P. Lev. 264. 153; 36 L. J. C. P. 1. (tj) Shaw V. Kay, 1 Exch. 412; 17 (rf) Cornish «. Cleife, 34L.J. Ex. 19; L. J. Ex. 17. 3 H. & C. 446. {z) Bickford v. Parsons, 17 L. J. C. (e) Morrison o. Chadwick, ante, p. P. 192. * 229, * 230. (a) Coward v. Gregory, L R. 2 C. P. 153; 36 L. J. C. P. 1. 381 * 241 THE CONTRACT OF LETTING. [BOOK II. to yield up in repair at the end of the term, although he imme- diately proceeds to demolish the buildings. (/) Where a party entered into possession under a lease which was void as to the duration of the term from its being an invalid execution of a power, but the lessee had the benefit of the pos- session of the land and the perception of the profits for the whole term purported to be granted, he was held liable upon his cove- nant to repair contained in the same lease, {g) And where articles of agreement under seal were entered into between an intended lessor and lessee for the grant of a lease for twenty-one years, as soon as a license from the lord of the manor (the land being copyhold land) could be obtained, and the lessee covenanted to keep the premises in repair during the term so to be granted, and subsequently entered and took possession of the land, and occupied the same under the agreement for the full term of twenty-one years, it was held that he was responsible upon his covenant to repair, although the intended lease had never been made, nor any license obtained from the lord. (Ji) If the lessee has not entered and held under the indenture of demise [*241] executed by him, aud * upon the terms of the covenant he has thought fit to enter into, but under a distinct parol demise, then he is not liable upon the covenants of the lease, (i) Where a lease made under a leasing power was void from non-compliance with the requirements of the power, but the lessee entered and took possession, and paid rent, and then assigned his interest, and the assignee entered and paid rent under the void lease, and continued in possession until the end of the term intended to have been granted, it was held that he must be taken to have promised to hold upon the terms of the lease, and that he was liable for not repairing according to the covenant therein contained. {!;) We have already seen {kk) that if a party assents verbally to certain printed terms of hiring, and enters and takes possession, he will be bound by the print- ed terms, although they are not signed either by him or by the (/) Rawlings v. Morgan, 18 C. B. (■/) Pitman v. Woodbiirv, 3 Ex. 12. N. .s. 776; 34 L. J. 0. P. 18.5. {k) Beale v. Sanders, "s Sc. .58; 3 (g) Beale v. Sanders, 3 Bing. N. C. Bing. N. C. 859; Lee v. Smith, 23 L. 850; 5 Sc. 58. J. E.x. 199. (h) Pistor V. Cater, 9 M. & W. 815. (kk) Ante, p. *212. 382 CHAP. I.] LANDLORD AND TENANT. * 242 lessor, (l) Where a tenant gave a written imdertaking to hire a house for three years, and to pay rent and repair during the term, but there was no lease or agreement on the part of the lessor, and the tenant entered and took possession and held the prem- ises for more than three years, it was held that he was respon- sible for neglecting to repair according to his undertaking, (m) The owner of two houses, 38 and 40, demised 38 by lease con- taining a covenant by the lessee to repair walls and party walls. Afterwards he demised 40 similarly. No. 40 was built so as to extend over a gateway between it and No. 38, and it rested on the wall which was a party-wall between 38 and the gateway, but this wall did not belong to No. 40. In an action by the lessee of 40 against the owner, it was held that there was no implied covenant on his part to repair this party-wall. («,) It was said that if an action were brought by the owner against the lessee of No. 40, it might be an answer to say that the owner had neglected some precedent obligation because No. 40 could not be repaired without first repairing this party-wall ; but the sugges- tion is not very clear, (o) By the statute of Anne, as we have seen (ante, p. * 230), the assignee of the reversion cannot sue for the rent without having given notice of the assignment ; but there is no provision to that effect with respect to his right to sue or eject for a for- feiture for non-repair, for the tenant may not know to whom to pay the rent without notice, but he must know that he ought to repair, (p) * Of the Tenant's Liability for Injury or Damage done [ * 242] to the Demised Premises. — In the absence of an express covenant or agreement to repair, there results from the demise and acceptance of the lease by the lessee an implied covenant or prom- ise, according as the lease is by deed or by simple contract, to use the property demised in a tenant-like and proper manner, to take reasonable care of it, and restore it, at the expiration of the term for which it is hired, in the same state and condition as it was in when demised, subject only to the deterioration produced {D Lord Bolton v. Tomlin, 5 Ad. & (n) Colbeck v. Girdlers Co., 1 Q. B. E. 856. D. 234. (m) Richardson v. Gififord, 1 Ad. & (o) Colbeck v. Girdlers Co., svpra. E. 55. (p) Scaltockv.Harston,lC.P.D. 106. 383 * 243 THE CONTRACT OF LETTING. [BOOK II. by ordinary wear and tear, and the reasonable use of it for the purpose for which it was known to be required. The extent of the liability of the tenant for the preservation of the property depends upon the duration and value of his own term and inter- est therein. A tenant for life, for example, is bound to watch over the interests of the reversioner, and is responsible for per- missive as well as commissive waste, whilst a tenant-at-will, or from year to year, is responsible only for commissive waste, {q) Permissive Waste by Lessees for Terms of Years. — A tenant for term of years is responsible for permissive as well as commissive waste, (r) but where he has not obliged himself by covenant to do repairs, he is not bound to rebuild ; for if the subject of oc- cupation perislies from time and natural decay, the landlord is the person to provide a new one, if he think fit. (s) A tenant for years must not suffer the roof of a house to remain uncovered, so as to let the timbers rot, and must use all reasonable endeavors to keep the buildings wind and water tight ; but he is not bound to repair the principal timbers of the roof, nor to replace old materials with new, except where the expense is of a trifling character, and the mischief, if neglected and left unrepaired, would operate to the lasting injury of the inheritance. If a roof is blown off by tempest, he is not bound to put on a new roof ; but if a few tiles only are stripped off, he is bound to replace them, or adopt means to keep out the wet. (t) The extent of the liability of a lessee, not holding under a covenant or agreement to repair, for permitting buildings demised to him to go to decay and ruin, will depend upon the age and general state and condi- tion of the buildings at the time he took possession of them, the nature and extent of the repairs required for their preserva- tion, and the duration of his own term and interest in [ * 243 ] the property ; {u) for a tenant-at-will or tenant * from year to year cannot be expected to do as much for the (j) Harnett v. Maitland, 16 M. & W. {t) See Lady Shrewsbury's case, 5 256; Heme v. Bembow, 4 Taunt. 764; Co. 13 b; M'Kenzie v. McLeod, 4 M. Jones V. Hill, 7 Taunt. 392; 1 Moore, & Sc. 253; 10 Bing. 385; Salop v. 100; Torriano v. Young, 6 C. & P. 12. Crompton, Cro. Eliz. 777. (r) Yellowlyu Gower, 11 Exch. 294; (m) Ferguson v. , 2 Esp. 690; 24 Law J. Exch. 299. Anworth v. Johnson, 5 C. & P. 239. (s) Bayley, J., "Wise v. Metcalfe, 10 B. & C. 314. 384 CHAP. I.J LANDLORD AND TENANT. * 243 preservation of the property as a tenant for a long term of years. If a house is burnt by negligence, this, as we shall presently see, is waste ; and if sea-walls and river-banks are destroyed from want of timely reparation, this will be waste ; but if they receive the usual and customary repairs, and are destroyed by a great tempest or a violent inundation, the lessee is not responsible for waste if he fails to rebuild them, (x) So where a building is destroyed by what is under all the circumstances an apparently reasonable user of the building, tenant is not liable for " waste." (y) Commissive Waste by Tenants for Terms of Years. — Whenever a tenant or lessee makes material changes in the nature of the premises demised to him, which have the effect of converting them into something substantially different from what they were at the time they were placed in his hands, he is guilty of com- missive waste, and is responsible in damages for infringing upon the proprietary rights of the landlord. The tenant by the lease has the use, not the dominion, of the property demised to him, and cannot make permanent changes and alterations in the prop- erty without the consent of the landlord, although such changes and alterations may greatly enhance the value of it; for the owner has a right to have his houses and lands kept in an unal- tered state, surrounded by all their old features, landmarks, and associations. (») Therefore an action is maintainable by tlie re- versioner pending the term against the tenant for inclosing and cultivating waste land included in the demise, and for continu- ing the grievance ; (a) also for tlie pulling down of an old build- ing and the substitution in lieu thereof of tenements of greater value, (b) for stopping up the windows, (c) or for removing a par- tition wall in a house and enlarging a chamber, ((f) Where a lessee opened a new door in a house, whereby the house was not in any respect weakened or injured, it was held to be a question for the jury whether there was or was not any injury to the rights of the reversioner, (e) But if there is any (a) 2 Roll. Abr. Waste (C). (5) Cole v. Green, 1 Lev. 309. (y) Manchester Warehouse Co. v. (c) ThomlinsoniJ. Brown,- Sayer, 215. Carr, 5 C. P. D. 507, following Saner v. (d) 2 EoU. Ahr. 815, pi. 9. Bilton, 7 Ch. D. 815. (c) Yonng v. Spencer, 10 B. & C. (z) Smyth v. Carter, 18 Beav. 78. ' 145. (a) Provost, &c. of Queen's College V. Hallett, 14 Ea.st, 489. VOL. I. 25 385 * 244 THE CONTRACT OF LETTING. [BOOK II. substantial alteration in the form and arrano-ement of the house, the hoase is no longer the same house, and there is an invasion of the proprietary rights of the landlord or reversioner. It is no answer to an action for the infringement of these rights to say- that the defendant might, before the expiration of the [ * 244 ] lease, restore the * premises to their former plight, and surrender them up to the landlord in their original condition. (/) The lessee of a water-mill, worked by a head of water penned back under a prescriptive right to pen back water for the purpose of working the mill, has no right to alter the height of the tumbling-bay, or transpose or alter the old permanent water- marks, as it tends to destroy the landlord's evidence of title to the head of water, and goes to the destruction of the thing granted. The lessee of house property must not remove wain- scots or floors, or pull down and rebuild, or open new windows aud doors, and change the form and arrangement of the house, without the consent of the owner. He cannot convert one species of edifice into another, such as a corn-mill into a fulling-mill or malt-mill, or a water-mill into a wind-mill, though the conversion be to the pecuniary advantage of the landlord, as well as to the benefit of the tenant, {g) He must not fell timber-trees (except for the necessary repairs of a house he has covenanted to repair), nor destroy spring-woods or young plants destined to become trees ; but he may cut wil- lows, maples, beeches, and thorns, if they do not shelter a dwelling-house, or sustain a bank, or afford shelter to cattle, and the cutting of them is not prejudicial to the inheritance. He may also cut oaks and ashes where they are usually cut as under- wood, and are in due course to grow up again from the stumps, and the cutting is warranted by local custom and usage. He must not dig for gravel, lime, clay, brick-earth, stone, or the like, except for the necessary repair and improvement of the demised premises, in fulfilment of the covenants of his lease. He must not remove virgin soil, (7i) nor open quarries or mines of metal (/) Provoat, &c. of Queen's College (.<7)Bac. Abr. (Waste) ; Qa\ev. Forth, V. Hallett, 14 East, 489; Cole v. Forth, 1 Mod. 94 ; Co. Litt. 53 a, 53 b. ■™M- (h) Higgon v. Mortimer, 6 C. & P. 616. 386 CHAP. I.] LANDLORD AND TENANT. * 245 or coal, for the purpose of selling the produce thereof ; but he may work mines and quarries which were open and in existence at the time of the demise, as they then form part of the annual profits of the land. He must not convert arable land into pas- ture, or pasture into arable land, or plough up a warren, or stub up a wood to make it pasture, or divert the courses of streams, nor dry up ancient pools or fish-ponds, nor destroy fences, nor put land under water, nor destroy the stock or breed of anything. He must not take all the fish out of a fish-pond, or the doves from a dovecote, or the deer from a park, or the rabbits and conies from a warren, or the game from preserves ; but he is en- titled to the reasonable use and enjoyment of them, leaving as many in store for the landlord when he goes out as he * found when he was intrusted with the possession and [ * 245 ] use of the property. {%) ^aste ma}' be committed by removing glass annexed to win- dows, for it is parcel of the house ; and although the lessee him- self, at his own cost, put the glass in the windows, yet, being once parcel of the house, he cannot take it away or waste it. Wainscot also, whether annexed to the house by the lessor or the lessee, is parcel of the house, and cannot be removed, unless it is purely of an ornamental character {fost, p. * 244); and there is no difference in law if it be fastened by great nails or little nails, or by screws or irons put through the posts or walls, {k) for every chattel affixed to the soil of another becomes a part of the soil, and belongs to the owner of the land, unless it is shown to have been affixed there in the necessary enjoyment of an easement by the person entitled to the easement, in which case it will belong to the latter, and not to the owner of the soil. (/) Waste by Tenant from Year to Year. — Tenant from year to year is not responsible for permissive waste. Where an action on the case was brought by a lessor against a lessee holding from year to year for suffering a house demised to him to go to ruin for want of repairs to the roof and windows, it was held that such an action was not maintainable. "There is no doubt," (i) D'Arcy (Ld.) v. Askwith, Hob. (k) Herlakenden's case, 4 Co. 63, b; 234; Phillips v. Smith, 14 M. & W. 593; Wilde v. Waters, 16 C. B. 637. Bac. Abr. ( H^aste) ; Litt. sect. 71. (I) Lancaster v. Eve, 5 C. B. N. s. 717. 387 *'246 THE CONTRACT OF LETTING. [BOOK II. observes Mansfield, C. J., " but tbat an action on the case may be maintained for wilful waste ; but at common law, if any part of the premises is suffered to be dilapidated, it amounts to per- missive waste ; and if this action be maintainable against tenant from year to year, such an action might be brought against a tenant-at-will who omitted to repair a broken window. I think this action is an innovation, and I am not disposed to encourage it." (m) But every tenant from year to year is bound to take all due and reasonable care of the premises demised to him, and if windows are broken by the wind or hail, and the rain gets in, he is liable for the non-repair of them, if the consequences of his neglect would be damage to the building from the rain. A mere tenant-at-will, whose interest the Eoman lawyers called " prccarmm" or a mere tenant from year to year, is not bound, unless by special contract, to expend money in rejiairs and improvements. " Tlie farmer,'' observes Domat, " ought to use the lands he has in farm as any prudent and discreet man would use his own, and to keep them, preserve them, and cul- [ * 246 ] tivate them at * the proper seasons, in the manner agreed on by the lease, or regulated by custom. He cannot increase his profits out of the lands to the prejudice of the proprietor. He cannot sow arable lands when they ought to lie fallow,- nor sow wheat when he ought only to sow barley or oats, if these changes would make the lands to be in a worse condition at the end of the lease than they ought to be.'' {n) The lessee of land who erects a building thereon does not commit waste by so doing, unless it can be shown that such building is an injury to the inheritance, (o) Timber Trees. — Wherever trees are excepted from a demise, there is, by implication, a right in the landlord to enter on the land and cut the trees at all reasonable times. ( p) Of the Duty of the Tenant to Preserve the Landlord's Land- marks and Boundaries. — Where a tenant for life, or for years, or at will, has land of his own adjoining to that which he holds as tenant, it is his duty to keep the boundaries between the two (m) Gibson v. Wells, 1 B, & P. N". R. (o) Jones v. Chappell, L. R. 20 Eq. 290; Heme v. Ben bow, 4 Taunt. 764; 539. Martin v. Gilham, 7 Ad. & E. 543. (p) Hewitt v. Isham, 7 Exch. 79. (?s) Domat, 1. 1, tit. 4, sect. 2. 388 CHAP. I.] LANDLORD AND TENANT. * 247 properties clear and distinct, so that at the expiration of the ten- ancy, the reversioner or remainder-man may be able without diffi- culty to resume the possession of what belongs to him ; and if the tenant or lessee neglects this duty, and suffers the boundaries to be confused, so that the reversiQner or remainder-man cannot tell to what land he is entitled, the courts will give relief by compelling the person who has occasioned the difficulty to remove it, and restore the proper boundaries, if it can be done, or if not, to give an equivalent. This relief is given not only against the party guilty of the neglect, but also against all those who claim under him, either as volunteers or purchasers without notice, {q) Fences. — There is no implied agreement on the part of a lessor to keep up the fences of closes which he retains in his own hands, and which abut on land demised to a tenant, so as to prevent the tenant's cattle from straying on to them, (r) Restrictive Covenants as to the User of Premises entered into between lessor and lessee run with the land {post, p. *1275). A general covenant by the lessee that he will not do, or suffer to be done, upon the demised premises anything which may become an annoyance to the tenants of the adjoining houses may prevent him from opening a shop or coal-office, or carrying on any trade or business in a dwelling-house, (.s) A lessee covenanted not to do anything to annoy or diminish * the value of the property adjoining, or build [*247] without the approval of the lessor, &c. The owner after- wards leased the adjoining property to another, who made a simi- lar covenant. The first lessee began to build with the approval of the lessor. It was held that the second lessee could not call upon the owner to restrain the first from building, {t) Where a building has been erected without complaint, the couit will not grant a mandatory injunction to pull it down, (m) Where a lessor covenanted that he would not let any other house in the {q) Attorney-General v. Stephens, 6 {t) Master v. Hansard, 4 Ch. D. 718; De G. M. & G. Ill; 25 L. J. Ch. 888. Renals v. Cowlishaw, 11 Ch. D. 866. (?•) Erskine v. Adeane, L. R. 8 Ch. See, however, Nicoll v. Fenning, 19 Ch. 756; 42 L. J. Ch. 835. D. 258. (s) Wilkinson v. Rogers, 10 Jur. (u) Gaskin v. Balls, 13 Ch. D. 324, N. s. 5. C. A. 389 * 247 THE CONTKACT OF LETTING. [BOOK II. same street "for the purpose of an eating-house," and then let a house to a person who set up an eating-house, although cove- nantina not to do so, it was held that the lessor was not liable to the first lessee, {x) "Where the lessee covenanted not to carry on any " business, &c., whatsoever, or anything of the nature thereof, or to suffer anything which may grow to the annoyance, &c., of the neigh- borhood," he was prohibited from using the premises as a throat hospital, where small payments were made by the patients, (y) The Right to remove Fixtures ^ without incurring liability for waste is considered at length in many learned treatises ; (?) but the present chapter will be confined to the consideration of fix- tures that have been held removable or irremovable as between landlord and tenant. Landlord's Fixtures. — The term " landlord's fixtures " means such things as the landlord chooses to annex to the freehold and demise with it, and which of course the tenant has no right to remove, and must restore at the end of the term : such as grates, marble chimney-pieces, locks, keys, bars and bolts, steam-engines and boilers, hay-cutters, malt-mills, corn-crushers, grinding-stones, &c. (a) Tenant's Fixtures. — The rule formerly was that where a les- see, having annexed a personal chattel to the freehold during his term, afterward took it away, it was waste. In the progress of time this rule was relaxed, and many exceptions have been grafted upon it. One has been in favor of ornament, as orna- 1 On the nature of fixtures generally, and the right of removal as between land- lord and tenant, see Tyler, Fixtures; Ewell, Fixtures; Taylor, Land, and Ten. 397- 408; Wood, Land, and Ten. o. 47; McAdam, L. & T. c. 14; Ahb. L. Diet. Fixtures. For tlie decisions, see [J. S. Dig. tit. Fh-lurcs ; ib. tit. Landlord and Tenant, sect. 444; also, Robinson v. W^right, 2 MuAi'thur, 54; Griffin v. Ransdell, 71 Ind. 440; Globe Marble Mills Co. v. Quinn, 76 N. Y. 23; Watriss v. First Nat. Bank, 124 Mass. 571; Stokoet>. Upton, 40 Mich. 581; Josslyn v. McCabe, 46 Wis. 591; Dobschuetz /'. Holliday, 82 111. 371 ; McAuliffe v. Mann, 37 Mich. 539 ; Hayes v. New York Gold Min. Co., 2 Col. T. 273; Torrey v. Burnett, 38 N. J. L. 457 ; Seeger v. Pettit, 77 Pa. St. 437; Linahan v. Barr, 41 Conn. 471; Holbrook V. Chamberlin, 116 Mass. 155; note by M. D. Ewell, 21 Am. L. Eeg. N. .s. 55. (a;) Kemp v. Bird, 5 Ch. D. 974, C. A. (z) Amos, Fixtures; Grady, Fixtures. \y) Braniwell v. Lacy, 10 Ch. D. 691 ; See D'Eyncourt u. Gregory, L. E. 3 Eij. Garman v. Chapman, 7 Ch. D. 271. For Ca. 382. effect of covenant to pay extra rent if a («) Walmsley !■. Milne, 7 C. B. N. s. noxious trade should be carried on, see 115; 29 Law J. C. P. 97. Weston 1). Met. Ass. Dist, 9Q.B.D.404. 3'JO CHAP. I.] LANDLORD AND TENANT. * 248 mental chimney-pieces, pier-glasses, hangings, wainscot fixed only by screws, and the like, (aa) Of all these it is to be ob- served that they are exceptions onl}'. (h) Other exceptions have been grafted upon the rule in favor of the enjoyment of the occupation, and in favor of trade, *and vessels, [*248] machinery, and utensils which are immediately subser- vient to the purposes of trade, (bb) If a landlord lets a house unfurnished, without the conveniences of grates or gas-fittings, and the tenant, for the enjoyment of his occupation, fixes them in the house, he may, unless he has contracted to leave them behind, remove them during his term. Whether a particular fixed chattel belongs to the landlord or the tenant, must in some instances depend upou what the contracting parties pro- pose to be the subject of the demise, (c) Pillars of brick and mortar built on the floor of a dairy by a tenant to sustain milk- pans have, however, been held to be part of the freehold ; (d) also barns and beast-houses, wagon-houses, fuel-houses, pigeon- houses, carpenters' shops for mending wagons and carts, and agricultural buildings employed and used upon the farm, and let into the ground, and not merely placed on the surface thereof, or on a brick or stone floor ; (e) also railway sleepers ; (ee) also conservatories, hot houses, or green-houses, erected on a brick or stone foundation, and attached thereto by permanent fastenings ; so that if the tenant removes them after he has put them up he is guilty of waste. (/) But if the tenant raises and constructs foundations of a permanent character for the reception of a super- structure of wood, and the superstructure merely rests on this foundation, or is attached thereto by screws or movable pins or bolts so as to be removable at pleasure without material or per- manent injury to the freehold, the movable structure placed on (aa) See the cases collected in Smith (e) Elwes v. Maw, 3 East, 38; 2 and Soden's L. & T. 2d ed., p. 244. Smith's L. C. 153, 6th edit. ; Wood v. (b) Buckland V. Butterfield, 4 Moore, Hewett, 8 Q. B. 913. 447. {ee) Turner u. Cameron, L. E. 5 Q.B. (bb) See the cases collected in Smith 306. and Soden's L. & T. 2d ed., p. 240. (/) BucHandu. Butterfield, 4 Moore, (c) Elliott V. Bishop, 10 Exch. 496; 440; 2 B. & B. 54; Jenkins «. Gething, 11 ib. 113; Sumner v. Bromilow, 34 L. 2 Johns. & H. 620; Sytne v. Harvey, 24 J. Q. B. 130. Sc. Sess. Cas. 502; Sleddon v. Cruik- (d) Leach v. Thomas, 7 C. & P. shank, 16 M. &W. 71; 16 L. J. Exch. 327. 61. 391 * 249 THE CONTRACT OF LETTING. [BOOK II. such foundation by the tenant continues the property of the lat- ter, and may be carried away by him at the expiration of his lease, (g) A door which may be lifted from its hinges, and a sliding fender used to prevent the escape of water from a mill- stream, does not necessarily become part of the freehold ; (A) nor a mooring-pile driven into laud for the accommodation of the navigation of a canal or river ; (t) nor looms of a worsted mill fixed by nails, (m) But locks, keys, and bars belong to the land- lord ; and so does a shutter and sliding bolt put up for the secu- rity of the premises. Agricultural Tenant's Fixtures made removable by [*249] statute. — * By 14 & 15 Vict. c. 25, sect. 3, it is enacted that if any tenant shall with the consent in writing of the landlord, at his own cost and expense, erect any building, engine, or machinery for the purposes of trade or agriculture, such buildings shall be the property of the tenant, and shall be removable by him, one month's previous notice in writing being given of his intention, and the landlord or his agent being afforded an opportunity of purchasing the thing proposed to be removed, as therein mentioned. If a tenant receives from his landlord timber for the purpose of erecting a shed, and uses the timber in the construction of it, he has no right to pull down the building and remove the timber, although he has added materials of his own, and confounded them in the erection with those furnished by the landlord, (k) By the Agricultural Holdings Act, 1875, it is enacted that where after the commencement of this act a tenant affixes to his holding any engine, machinery, or other fixture for which he is not under this act or otherwise entitled to compensation, and which is not so affixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to the landlord, then such fixture shall be the property of, and be removable by, the tenant. (?) Grymes v. Boweren, 4 M. & P. (h) Wood v.Hewitt, 15 L.J. Q.B.247. 143; 6 Bing. 437; Eex v. Otley, 1 B. & (i) Lancaster^. Eve, 5 C. B. n.s. 726. Ad. 161; Wansbrough u. Maton, 4 Ad. (u) Holland'!;. Hodgson.L. K. 7C.P. & E. 884; Davis v. Jones, 2 B. & Aid. 328; Ex parte Astharj, h. R. 4 Ch. 630; 165; Rex v. Loudonthorpe, 6 T. R. 377; Longbottoni v. Bei'ry, L. E. 5 Q. B. 123. Wiltehear I). Cottrell, 22 L. J. Q. B. 181. , [k] Smith 1;. Render, 27 L. J. Ex. 83. 392 CHAP. I.] LANDLORD AND TENANT. * 250 Provided as follows : — 1. Before the removal of any fixture the tenant shall pay all rent owing by him, and shall perform or satisfy all other his obligations to the landlord in respect of the holding. 2. In the removal of any fixture the tenant shall not do any avoidable damage to any building or other part of the holding. 3. Immediately after the removal of any fixture the tenant shall make good all damage occasioned to any build- ing or other part of the holding by the removal. 4. The tenant shall not remove any fixture without giving one month's previous notice in writing to the land- lord of the intention of the tenant to remove it. 5. At any time before the expiration of the notice of removal, the landlord, by notice in writing given by him to the tenant, may elect to purchase any fixture comprised in the notice of removal, and any fixture thus elected to be purchased shall be left by the tenant, and shall become the property of the land- lord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difference as * to the value shall be [*250] settled by a reference under this act, as in case of compensation (but without appeal) : But nothing in this section shall apply to a steam-engine erected by the tenant if, before erecting it, the tenant has not given to the landlord notice in writing of his intention to do so, or if the landlord, by notice in writing given to the tenant, has objected to the erection thereof. Ornamental Fixtures. — The Ornamental fixtures now held sev- erable and removable by the tenant are chimney-glasses, pier- glasses, ornamental chimney-pieces and stoves, tapestry and hangings nailed to the wall in lieu of ornamental paper or panels, (l) and ornamental cornices capable of being detached without injury to the building, (m) Domestic and Trade Fixtures. — Amongst the various domestic (Z) Beck V. Rebow, 1 P. Wms. 94. (m) Avery v. Cheslyn, 3 Ad. & E. 75. 393 * 251 THE CONTRACT OF LETTING. [BOOK II. aud trade-fixtures held to be removable by the tenant are gas- pipes and gas-fittings, and water-pipes attached to buildings by- metal bands and nails, grates, ranges, ovens, coppers, bells, blinds, fixed tables, water-butts, cupboards, &c., (n) soap-boilers' furnaces, fat-vats, coppers, dyeing and brewing vessels, cider-mills, baking- ovens, steam-engines, and salt-pans ; (o) also machinery, engines, vats, plant and utensils used in trade, however bulky or complex they may be in their construction. The tenant may take them to pieces and remove them, and put them together again in the same form in some other place. And where a shed or building is a mere accessory to a trade fixture, such as a shed or any tem- porary building erected merely for the purpose of covering and protecting a steam-engine, or machinery or trade utensils, from the effect of the weather, it may be removable, together with the trade-fixture to which it belonged, on the ground that OTiuie accessoriuvi sequitur sumn principale. But a building is not removable merely because it has been erected for manufacturing or trading purposes, or for the purpose of covering and protecting machinery. If the building is of a substantial character, stand- ing on brick or stone foundations let into the soil, and is con- structed so as not to be removable without the entire destruction of the fabric, it cannot be disannexed from the freehold and taken away, although it may be built over a steam-engine, and may con- tain nothing but steam-machinery, spinning-jennies, drums and wheels, all of which may be removable, and to all of which it may in a certain sense be accessory, (p) [*251] * Fixtures removable by Local Custom and Usage. — Things annexed to the freehold are sometimes held re- movable in accordance with local custom and usage in particular districts, such as barns and granaries erected on stone pillars, or on pattens or blocks of timber, (q) And if the pillars or pat- tens merely rest on the ground, and are not attached to founda- (n) Wall V. Hinds, 4 Gray's Anier. {p) Whitehead v. Bennett, 27 Law Hep. 272; Elliott v. Bishop, ante, p. J. Ch. i74. *248. (q) 11 Vin. Abr. 154; Exscutors, U. (o) 42 Edw. III., fol. 6, pi. 19; 20 pi. 74; Culling v. Tuffnell, Bull. N. P. Hen. VII., fol. 13, pi. 24; Poole's case, 34. 1 Salk. 368; Lawton v. Lawton, 3 Atk. ' 13; Penton v. Robart, 2 East, 90. 394 CHAP. 1.] LANDLOED AND TENANT. * 251 tions sinking into the soil, they are removable without any custom, (r) Abandonment of the Right to disannez and remove Ornamental and Trade Fixtures. — If the tenant has entered into an express covenant to yield up, at the expiration of his term, " all erections and buildings that may be erected," or " all improvements that may be made," upon the demised premises, he cannot afterward remove trade erections or buildings, or trade or ornamental or domestic iixtures. (s) A covenant in a lease to yield up the demised premises to the lessor at the expiration of the lease, together with all fixtures thereunto belonging, is confined to fix- tures which belonged to the demised premises at the time of the execution of the lease, and does not extend to fixtures which were not then in existence; but a covenant to yield up fixtures belonging, or that may belong, to the demised premises, extends to fixtures that are afterward put up by the tenant, (t) Inability of the Tenant to remove Fixtures after the Expiration of his Term. — Whenever an outgoing tenant is possessed of fix- tures which he has a right to remove, he must exercise such right prior to the determination of his tenancy; he cannot, after a formal disclaimer of the title of his landlord, or after he has once quitted the demised premises and given up the key to the landlord, re-enter for the purpose of severing and removing fix- tures. " After the term, they become a gift in law to him in reversion, and are not removable," unless the tenant, after the expiration of the term, has remained in possession, with the sufferance and permission of the landlord, and actually severs them and removes them during the continuance of his lawful possession, after the expiration of the term. If he holds over wrongfully, he loses his right to sever and remove his fix- tures ; and if he quits possession, and the tenancy is deter- mined, his right to his fixtures is extinguished, and they become the property of the reversioner, (w) If the lease be- (?•) 2 Smith's L. C. 6th ed. ; notes to ante, p. *248; see also Dumergue v. Elwes V. Maw. Eumsey, 33 L. J. Ex. 88; Sumner v. (s) Naylorv. Collinge, 1 Taunt. 19; Bromilow, 34 ib. Q. B. 130. Thresher v. E. L. Water Co., 2 B. & C. (t) Hitchman v. Walton, 4 M. & W. 608; 4 D. & K. 62; Martyr v. Bradley, 2 414; Metrop. Co. Ins. Soc. v. Brown, 28 M. & Sc. 25; 9 Bing. 24; West v. Blake- Law J. Ch. 581. way, 3 Sc. N. E. 218; Elliott v. Bishop, (m) Leader v. Homewood, 5 C. B. 395 * 252 THE CONTRACT OF LETTING. [BOOK II. [*252] comes * forfeited, and the tenant, whilst he continues in possession after the forfeiture, and before judgment in ejectment has been obtained against him, removes his fixtures, he will be entitled to retain those removed within a reasonable time, as they are not forfeited to the landlord by the forfeiture of the lease, (x) But if the landlord re-enters for the forfeiture, tlie tenant's right to remove the fixtures is gone, (y) Right of Purchasers or Mortgagees to enter and remove Fixtures. — The right of the assignee of the lessee can, of course, in gen- eral, extend no farther than the right of the lessee himself ; but the tenant's right to remove fixtures is held to be so far connected with the land, that it may be considered as a right or interest in it, which, if the tenant grants away, he shall not be allowed to defeat his grant by a subsequent voluntary act of surrender, " for as regards strangers who were not parties or privies to the surrender, the estate surrendered hath in law a continuance ■"(z) and, therefore, if a lessee who has mortgaged his fixtures surren- ders his term and c[uits possession, the mortgagee may neverthe- less enter and remove the fixtures, (a) Trade fixtures aiSxed to mortgaged premises by the mortgagor in a quasi-permanent manner, before or even after the mortgage, pass to the mort- gagee, (h) An equitable mortgagee has the same rights in this respect as a legal mortgagee, (c) Waste committed by Strangers upon Land demised to a Tenant or Lessee. — Every lessee of land, whether for life or years, is liable, under tlie statute of Gloucester, to an action for com- missive or wilful waste done on the land in lease, by whomso- ever it may be committed. The statute of Gloucester "pro- liibiteth farmers from doing waste ; and yet, if they suffer a stranger to do waste, they shall be charged with it, for it is N. s. 546; 27 Law J. U. P. 316; Buffey Co., 6 C. B. N. s. 7fl8; 28 Law J. G. P. V. Henderson, 21 ib. Q. B. 49; 17 Q. B. 297. 574; Heap v. Barton, 12 C. B. 274. (J) Cullwick v. Swindell, L. E. 3 (.)_■) Stansfield v. Mayor of Ports- Ecj. Ca. 249; Climie v. Wood, L. E. 3 mouth, 4 C. B. N. s. 131; Sumner v. Exch. 257; 4 Exch. 328 (Exch. Cli.); Bromilow, 34 L. J. Q. B. 130; but see 38 L. J. Exoh. 223; see Boyd v. Shor- Storer v. Hunter, 3 B. & C. 368. rock, L. 11. 5 Eq. Ca. 72; Ex parte Ash- (»/) Pugli V. Acton, 38 L. J. Ch. 619; bury, L. E. 4 Ch. App. 630; Longbottom L. R. 8 Eq. Ca. 626. v. Berry, L. E. 5 Q. B. 123; Holland v. (2) Co. I.itt. 338 b. Hodg,son, L. E. 7 ('. P. 328. (o) Lond. & Westminster Loan, &c. (c) Tebb v. Hodge, L. E. 6 C. P. 73. .396 CHAP. I.] LANDLORD AND TENANT. * 253 presumed in law that the fanner may withstand it ; ' Et qui non obstat quod obstare potest, facere videtur.' In this case the lessor shall have his action of waste against the lessee, and the lessee his action of trespass against him that did the waste, and so the loss, as reason requireth, in the end shall lie upon the wrong-doer." (d) License to commit Waste. — If a general or partial permission be given to the lessee by the le^se to commit waste, he is so far tenant * without impeachment of waste. [*253] Such permission vests the property of what is the sub- ject of waste in the lessee, so that he avails himself of it during the continuance of his interest. It is so with respect to trees and minerals. Where land was demised for a term of years, with liberty to the lessee to dig half an acre of brick-earth to a cer- tain depth annually, and the lessee covenanted that if he dug more he would pay an increased rent of £375 per annum per acre, and a stranger dug and took away brick-earth, it was held that the lessee was entitled to recover from the stranger the full value of such brick-earth, (e) Right of Reversioners to enter upon Lands in the Possession of their Lessees to inspect Waste. — The law gives to the lessor, or him who hath the reversion, liberty to enter upon the lands of his lessee to see if there be waste, to the intent that he may have his action, if there be cause for it ; and if the lessee pre- vents the inspection, he is liable to an action for damages. (/) Injuries to Lands and Tenements from Fire. — The involuntary and imintentional burning of a house, through the negligence of the tenant or his servants, amounts, in contemplation of law, to no more than permissive waste ; and for this a tenant-at-will or from year to year is not, as we have seen, responsible to the re- versioner (arete, p. * 245). Where the Countess of Shrewsbury brought an action against a lawyer of the Temple, and declared that she leased to him a house at will, " et quod ille tam negli- genter et improvide custodivit ignem suum quod domus ilia combusta fuit," it was held that the action was not maintainable, as it was in effect an action for permissive waste, for which a (d) 2 Inst. 146. (/) Hunt v. Dowman, Cro. Jac. {e) AttersoU v. Stevens, 1 Taunt. 183. 478. 397 * 254 THE CONTRACT OF LETTING. [BOOK II. tenant-at-will was not answerable, [g) Every landlord who demises buildings to a tenant must be taken to contemplate all the ordinary risks to which house property is exposed from fire and the negligence of servants intrusted with fire and candles ; (A) and if he wishes to be protected from these risks he must either insure, or take from his lessee a covenant to repair and maintain the premises. If he fails to do so, and the premises are destroyed by fire, without any gross or culpable negligence on the part of the tenant, the landlord will have no remedy for the loss. If the fire has been caused by such an amount of gross negligence as to give it the appearance of a wilful act, the party guilty of the misconduct, whether it be the tenant or a stranger to the demise, will be answerable for commissive waste. Every tenant of a liouse is responsible for not taking [* 254] care that * the stop-cocks for regulating the supply of gas to a house are properly turned ; and if these stop-cocks are negligently left open by the tenant or servants when the gas- lights are not burning, and an explosion ensues, and injures the house, the tenant will be responsible for the injur}'. But if a thief enters the house in the absence of the tenant, and cuts and carries away a gas-pipe without the knowledge of the tenant, or against his will, the latter is not then responsible for the resulting damage. When the entry of gas into a house is under the con- trol of the occupants of the house, the gas company supplying the gas is not bound, on receiving notice that no more gas will be required, to stop the supply from the outside by putting on an outer stop-cock, or cutting off the communication between the gas-pipes in the interior of the house and the main in the street. {€) In supplying gas to a house, a gas company is bound to use every reasonable precaution to prevent injury during the operation of " tapping the main." Qc) In an action for waste, it is no objection to the landlord's claim to substantial damages, or to the judgment of the court, {g) Conntess of Shrewsbury 1). Cromp- excusat." — Fleta, lib. i. cap. 12, sect, ton, 5 Co. 13 b; Cro. Eliz. 777; Tindal, 20. C. J., 4 M. & Sc. 253; Horsefall v. (i) Holden v. Liv. Gas Co., 3 C. B. Mather, Holt, N. P. C. 9. 14; 15 Law J. C. P. 304. (■/i) " Fortiina autem ignis, Tel hujus- (k) Blenkiron v. Gt. Central Gas modi eventus inopinati, omnes tenentes Consumers' Co., 2 F. & F. 438. 398 CHAP. I.] LANDLORD AND TENANT. * 255 that the property has been improved in value by alterations made upon it, if those alterations have been made without the knowledge of the landlord, or in spite of his protest or objec- tions. Thus, if a tenant convert a furze brake, in which game have bred, into arable or pasture land, by which its real value is much improved, but the landlord has objected to the improvement, preferring a furze brake with game to a cornfield without game, the landlord is entitled to substantial damages, Q) and to judg- ment, whatever may be the damages recovered, (m) When the action is brought for a breach of duty by the defen- dant in omitting or neglecting to restore or rebuild a house which the defendant has undertaken to maintain and keep up, and which has been accidentally burnt or destroyed, the measure of damages is not the cost of rebuilding the house. In such a case the plaintiff can only recover the loss he has sustained by the actual deterioration of his property. And if the new house, when rebuilt, will be much more valuable to the plaintiff than the old house that was burnt or destroyed, the defendant is en- titled to the benefit of the deduction of the increased value from the cost of the rebuilding, (w) Damages recoverable from a Teuaut vrho obstructs the Rever- sioner in the Exercise of his Right to enter upon the demised Premises to inspect Waste. — We have already seen that the law * gives to the lessor, or him who hath the [*255] reversion, liberty to enter upon the lands of his lessee, to see if there be waste, to the intent that he may have his action if there be cause for it ; and, therefore, if the lessee prevents the inspection, substantial damages may be recovered from him by reason of the infringement of the lessor's right, although no waste has actually been committed or damage done, (o) The courts will interfere by injunction to restrain lessees and mortgagees in possession from committing waste to the injury of the landlord or mortgagor, unless the wrongful act works a for- feiture of the estate, and the landlord has an immediate right of entry and fails to exercise it, (p) or unless the parties have by {I) Heath, J., Harrow School v. Al- 24 Law J. Exch. 226; Lukin v. Godsall, derton, 2 B. & P. 86. 2 Peake, 15. (m) Pindaru'Wadsworth,2East, 161. (o) Hunt t). Dowraan, Cro. Jac. 478. (a) Yates v. Duiister, 11 Exch. 17; {p) Lithropp v. Marsh, 5 Ves. 259. 399 * 256 THE CONTRACT OF LETTING. [BOOK II. their contract assessed the compensation in the shape of an in- creased rent, or liquidated damages to be paid for the doing of the act, (q) and not as a cumulative remedy, (r) Where a tenant from year to year received notice to quit, and then began to cut and damage the hedgerows, and to take manure off the land, and remove straw, &c., contrary to the course of good husbandry, the court granted an injunction to stop the mis- chief (s) And where the tenant of a farm, having discovered valuable mineral deposits in a stream which ran from the Welsh mountains through his land, set to work to gather the minerals and sell them, the court granted a perpetual injunction to restrain him from so doing, (f) And so it will on a bill brought by a mortgagor, where the mortgagee in possession commits waste by cutting down timber, and the money arising from the sale of the timber is not applied in sinking the interest and principal of the mortgage. And where mortgagor in possession commits waste, tlie court will, on a bill by the mortgagee, grant an injunction, for they "svill not suffer a mortgagor to prejudice the incumbrance, (u) Effect of Acquiescence in the Commission of 'Waste. — It is a principle of equity that when a person has stood by seeing an act done, and has consented to it, he cannot complain of that which he has himself expressly or impliedly authorized or per- mitted. Thus where the plaintilf had demised a logwood-mill to the defendant, and the latter altered it to a cotton-mill of great value, and the plaintiff stood by and saw the cotton-mill erected at great expense, and made no objection, and [ * 256 ] afterward approved of the * defendant's planting about the mill, and the plaintiff then filed a bill for an injunc- tion to restrain the defendant from using the mill as a cotton- mill, the court dismissed the bill, on the ground that the plain- tiff had by his conduct encouraged the defendant to make the alteration, (x) (q) Woodward v. Gyles, 2 Vem. 119; (u) Farrant v. Level, 3 Atk. 722. Carnes v. Nesbitt, 7 H. & N. 778; 30 {:•■) Brydge.? u. Kilburne, cited Jack- Law J. E.xch. 348; Rolfe v. Peterson, 2 soni'. Cater, 5 Ves. 688; Harrow School Bro. P. C. 436. v. Alderton, mite, p. *254; Kex v. But- (r) London (City of) v. Piigh, 4 Bro. terton, 6 T. R. 555; E. I. Co. v. Vincent, P- C. 395. 2 Atk. 82; Parrott v. Palmer, 3 Myl. & (s) Onslow V. , 16 Ves. 173. K. 640. (<) Thomas v. Jones, 1 Y. & C. 510. 400 CHAP. I.] LANDLOED' AND TENANT. *256 Of the Right of Property in Trees and Bushes. — Accordins to the old authorities, the general property in trees is in the landlord, and that in bushes is in the tenant, although if he exceeds his right — as by grubbing up or destroying fences — he may be liable to an action for waste. The tenant has the general property in the cuttings of a hedge, whoever cuts it. {y) Defeasible Leases. — The lessor may reserve to himself a right to determine the lease and resume possession of the demised premises at any time on giving notice of his intention to the lessee, (s) If a lease is made defeasible at the option of either of the parties, it may be determined by the lessor by a simple demand of possession, or tlie tenant may quit the demised prem- ises and release himself from his contract by tendering posses- sion to the landlord ; but if the lease is made determinable at the expiration of three, six, or nine years, or any particular inter- val of time, reasonable notice of the intention to determine the contract must be given by the party who intends to avail himself of the power of defeasance, (a) If the lease is made determin- able at the expiration of a certain time if the parties shall think fit, both must concur in determining the lease, (h) If power to determine the lease after a certain time is reserved, without say- ing by whom it is to be exercised, the law gives it to the lessee, (c) If an agreement is entered into for a yearly tenancy, with a pro- viso for determining it in the middle of the year, such a proviso does not prevent it from being a yearly tenancy, ^^'hen the party is in, he is in of the whole estate for a year, liable to a defeasance on a particular event. So, where there is a lease for twenty-one years, determinable at the end of seven or fourteen years, the party, when he enters, is in of a term of twenty-one years, but a defeasible term, and which may determinate by matter ex post facto, (d) When the lease is determinable by notice, the notice may be given at any time, if no particular period for giving it is specified ; (e) but it must be in strict (?/) Berriman v. Peacock, 9 Biiig. (J) Fowell i). Franter, 34 L. J. Ex. 6. 384.' (c) Dann v. Spurrier, 3 B. & P. 399. {z) Doe V. Kennard, 12 Q. B. 244; (d) Bex v. Heratmonceaux, 7 B. &C. Liddy «. .Kennedy, L. R. 5 H. L. 134. 555. (n) Goodrighti;. Richardson, 3 T. R. (c) Bridges v. Potts, 17 C. B. N. s. 462. 314; 33 L. J. C. P. 338. VOL. I. 26 ,401 * 257 THE CONTEACT OF LETTING. [BOOK U. conformity with the terms of the power of defeasance ; [*257] and when * performance of all the covenants that have heen entered into by the lessee is made a condition pre- cedent to his right to determine the lease, these covenants must be strictly fulfilled. (/) Disclaimer and Forfeiture. — If a tenant from year to year dis- claims the title of his lessor ; if he claims the land as his own, and refuses to pay rent on the ground that he is himself the owner, or if he attorns or delivers up possession to a stranger, or professes to sell or grant the property to another ; if lie cuts down tim- ber, pulls down or alters dwelling-houses, or obliterates fences, boundaries, and landmarks, or opens and digs mines and quarries against the will of the landlord, the tenancy is determinable by the latter, and he has a right of re-entry upon the property, and may forthwith recover j)ossession of the demised premises, {g) Acts of this description on the part of a tenant from year to year work a forfeiture of his term and interest, and convert the possession into an adverse possession, so that the tenant may at once be proceeded against without any notice to quit and with- out any demand of possession, (/t) But if the lessor dies, and adverse claimants to the property appear and demand the rent of the tenant, and the latter refuses to pay it until the conflict- ing claims have been ascertained and settled, the refusal is not such a disclaimer of the title of the real owner as will justify the latter in treating the tenant as a trespasser, {i) " To consti- tute a disclaimer (by words), there must be a renunciation by the party of Iiis character of tenant, either by setting up the title of a rival claimant, or by asserting a claim of ownership in him- self" {k) A mere refusal to pay rent, or a declaration by the tenant that he will continue to hold possession, or an omission to acknowledge the landlord as such by requesting further infor- mation as to title when the property has changed hands, does not (/) Friar u. Grey, 15 Q. B. 899; 5 (i) Doe v. Pasquali, 1 Peake, 259; E.xch. 584. Swinfen v. Bacon, 6 H. & N. 846; 30 (rj) Jones v. Mills, 10 C. B. x. s. 788; L. J. Ex. 368. 31 L. J. C. P. 66. (k) Doe v. Cooper, 1 Sc. N. R. 41; (h) Doe v. Frowd, 1 M. & P. 480; 4 Hunt v. Allgooil, 30 L. J. C. P. 313; 10 Biiig. 557; Doe v. Flynn, 1 C. M. & R. C. B. N. s. 253. 137; Doe i). Pittman, 2 N. & M. 673; Vivian v. Moat, 16 Ch. D. 730. 402 CHAP. I.] LANDLOKD AND TENANT. * 258 render the tenancy an adverse tenancy and possession. (I) All verbal disclaimers operating as a forfeiture of the tenant's inter- est in and right of possession of the demised premises, and dis- pensing with the necessity of a notice to quit, are restricted to tenancies from year to year. A lease for a definite term of years cannot be forfeited by mere words, (m) And if, after a dis- claimer by a tenant from year to year, the landlord puts in a distress for rent which became due subsequently to the dis- claimer, such distress is a waiver of the disclaimer, and again clothes the * tenant with a lawful possession. («) [*258] Forfeiture is also incurred by the breach of conditions annexed to the demise ; for the lessor, having the Jus disponendi, may annex whatever conditions he pleases to his grant, provided they are not illegal or repugnant to the grant itself, and upon the breach of those conditions may avoid the lease, (o) But the law does not favor forfeitures of estates ; and strict proof of a breach of a condition or covenant working a forfeiture of a lease is always required.(p) Provisos for Re-entry. • — It is frequently made a term or con- dition of the demise that the lease shall be forfeited and the lessor have a right to re-enter and re-possess himself of the demised premises for a breach of particular covenants contained in a lease. The right to take advantage of a proviso of this description is, of course, confined to the lessor and the assignee of the reversion or part of the reversion ; {q) and the lessee can- not be permitted to set up his own breach of contract as an avoidance of the lease ; for no man is permitted to take advan- tage of his own wrong, (r) If it is provided that, in case of non- payment of rent, it shall be lawful for the lessor " to enter upon the premises for the same until it be fully satisfied," the lessor will be entitled to enter and hold possession until the arrears of rent are satisfied ; but when they are satisfied, the lessee will be entitled to re-enter and hold under the lease as before, (s) It (?) Doe V. Cawdor, 1 C. M. & R. 398; (?) 22 & 23 Vict. 35, sect. 3. Doe V. Stanion, 1 M. & W. 703. (r) Eeidi). Parsons, 2 Chit. 248; Doe (m) Doe V. Wells, 10 Ad. & E. 436. v. Birch, 1 M. & W. 402; Jones v. Car- Ire) Doe V. Williams, 7 C. & P. 322. ter, 15 M. & W. 725. (o) Bac. Abr. Leases, T. 2. («) Co. Litt. 203; Doe v. Bowditcli, (p) 1 Wms. Saund. 287 b, 288 i; 1 15 L. J. Q. B. 267. Mad. c. 36. 402 * 259 THE CONTRACT OF LETTING. [BOOK II. should seem that a power of re-entry upon the lessee " wilfully failing or neglecting to perform " any covenant, does not apply to a breach of a negative covenant, (i!) but a power to re-enter if the lessee does not " observe, perform, and keep " the cove- nants, does apply to a breach of a negative covenant, (ii) Pro- visos in leases for re-entry in case of non-payment of rent or non-performance of covenants are not " to be construed with the strictness of conditions at common law ; but, being matters of contract between the parties, they should be construed like all other contracts." (.r) Where the lessee was to hold in consider- ation of the rent "and conditions" contained in the lease, and it was stipulated and " conditioned " that the lessee should not assign or underlet, it was held that the lease was forfeited, and that the lessor had a right to re-enter, on an assignment being made by the lessee, (y) An agreement to hire a messuage at a certain rent is an agreement to pay that rent ; and, there- [*259] fore, *if a power of re-entry is reserved "in case of breach of any of the agreements " contained in the written instrument of demise, the lessor may re-enter for non- payment of rent, {z) Where a lessee covenanted to pay rent and not to assign, and there was a proviso for re-entry if the rent was in arrear, or all or any of the covenants " liereinafter con- tained " on the part of the lessee should be broken, and there were no covenants on the part of the lessee after tlie proviso, but only a covenant by the lessor, that the lessee paying the rent, &c., should quietly enjoy, it was held that the lessor could not enter for breach of the covenant not to assign, as the proviso was restrained by the word "hereinafter" to subsequent cove- nants, and there were none such in the lease, (a) Where there is a proviso for re-entry in case of non-performance of covenants, and the lease contains a general covenajit to repair, and also a covenant to repair within a certain time after notice, the land- lord may at once enter for breach of the general covenant ; (b) (/) Hyde v. Warden, 3 Ex. D. 72, {y) Doe v. Watt, 8 B. & C. 308. C. A. (£•) Doe V. Kneller, 4 0. & T. 3. (m) Evans V. Davis, 10 Ch. D. 747. (a) Doe v. Godwin, 4 M. & S. 265. (,«) Doe V. Elsam, M. & M. 191; (b) Baylis v. Le Gros, 4 C. B. N. s. Hayne o. Cummings, 16 C. B. N. s. 537. 425. 404 CHAP. I.] LANDLORD AND TENANT. * 2ti0 but if he gives notice under the second covenant, this is a waiver of the forfeiture incurred by breach of the general covenant, and he cannot recover possession until after the time limited by the notice has expired, (c) A notice to repair " in accordance with the covenants," or "forthwith," will not, however, amount to a waiver of the forfeiture incurred by a breach of the general cove- nant, (d) Where a right for re-entry for waste is reserved, the proviso is understood to mean such waste as is injurious to the reversion. («) Where there is a proviso for re-entry for breach of a covenant to insure and keep insured, it does not mean that the lessee shall keep any one particular policy on foot, but that he shall always keep the premises insured by some one policy or another ; and the breach will be a continuing breach so long as they remain uninsured. (/) A power of re-entry, in case the lessee carries on any trade or business upon the demised premises, authorizes the lessor to re- enter if a school is established, (r/) But when particular trades or occupations are specified, no trade or business which does not clearly fall within the description contained in the lease will come within the proviso, (h) A proviso for re-entry may be reserved in case the tenant should become bankrupt or insolvent, (i) or the term granted should be taken in execution by the sheriff; (A) and * if the contingency provided for hap- [*260] pens, the lessor will be entitled to take possession and to enjoy the emblements. (I) If a proviso for re-entry is insen- sible, it is of course nugatory ; for the court cannot find a mean- ing for that which has no meaning, (m) If the lessor has the custody of the lease, and has in any wise misrepresented the nature of the proviso, or of the covenants to be fulfilled, or has withholden any necessary information from the lessee, or done anything to entrap the latter into a forfeiture, the law will not permit the lessor to avail himself of such forfeiture ; for that (c) Doe v. Meux, 4 B. & C. 606. (h) Jones v. Thome, 1 B. & C. 715. {d) Few V. Perkins, L. E. 2 Ex. 92 ; (?:) Roe v. Galliers, 2 T. E. 133; Doe 36 L. J. Ex. 54; Roe v. Paine, 2 Campb. v. Ingleby, 15 M. & W. 465. 520. (k) Eex v. Topping, M'Clel. & Y. (e) Doe V. Bond, 5 B. & C. 855. 544. (/) Doe V. Peck, 1 B. & Ad. 428. {!.) Davis v. Eyton, 7 Bing. 154. (g) Doe V. Keeling, 1 M. & S. 95. (m) Doe v. Carew, 2 Q. B. 317. 405 * 261 THE CONTRACT OF LETTING. [BOOK II. would be permitting liim to take advantage of his own wrong. («) When a party is let into possession under an agreement for a future lease, which is to contain ceitaiu covenants and a proviso for re-entry in case of the non-performance of those covenants, the tenant holds, as we have before seen, subject to all such of the terms of the intended lease as are applicable to a yearly ten- ancy ; and if, before the lease is granted, the lessee does an act which would have worked a forfeiture of the lease had it been granted, the landlord will have a right to re-enter, and may forthwith recover possession, (o) Effect of Re-entry on the Lessee's Liability on his Coven- ants. — The forfeiture of the lease does not extinguish the lia- bility of the lessee in respect of breaches of covenant that had accrued at the time of the forfeiture, so that the lessor, by tak- ing advantage of the forfeiture and re-entering, does not deprive himself of his remedies upon the covenants of the lease for any breach of those covenants up to the time of the re-entry, (p) If the landlord does not think tit to avail himself of the forfeiture, the liability of the lessee upon the covenants of the lease re- mains unaffected by the forfeiture ; but if the landlord brings an action of ejectment, he cannot, in general, sue the lessee in respect of breaches of covenant that have accrued subsequently to the commencement of the action, (q) Waiver of a Forfeiture. Lessor's Right of Election. — The right of entry for forfeiture of a lease is governed by the general law that where a man has got a right to elect to do a thing to the injury of another, his election, when once made, is final and conclusive, and he cannot afterward alter his determination. If, therefore, a lease has been forfeited, and there is an election on the part of the landlord to enter and defeat the lease or not as he pleases, and he by word or act manifests his in- [*261] tention that the * lease shall continue, he waives the forfeiture, and cannot afterward annul the lease. If, knowing of a forfeiture, he nevertheless tells his tenant that he is still tenant, and that lie shall hold him to the covenants and (n) Doe V. Rowe, Ry. & Mood. 346. (p) Hartshorne i;. Watson, 5 Sc. 506; (o) Doe V. Amey, 12 Ad. & E. 476; 4 Bing. N. C. 178. Doe V. Ekins, Ey. & M. 21) ; Hayne v. (j) Jones v. Carter, 15 M. & W. 718. Cumming, 16 C. B. N. s. 421. 406 CHAP. I.J LANDLORD AND TENANT. *261 stipulations of his lease, the election is made, and the landlord cannot afterward enter for the forfeiture, (r) On the other hand, if he brings ejectment for tlie forfeiture, he unequivocally declares his election to determine the lease ; and a subsequent distress is no waiver of the forfeiture, (s) Acceptance of rent, or demand of rent, or the bringing of an action for rent, or dis- training for rent, accruing due after a forfeiture, will be consid- ered as strong evidence of the lessor's determination to continue the lease and waive the forfeiture, if it appears that at the time the lessor received the rent, he had notice of the breach of the condition, (t) A forfeiture for not repairing may be waived by the receipt of rent which became due after the right of entry accrued, but not by the receipt of rent becoming due before the expiration of a notice to repair. A forfeiture is suspended, but not waived, by allowing a tenant further time to repair, (m) A waiver of one forfeiture does not prevent the lessor from availing himself of subsequent forfeitures ; (x) and a receipt of rent is no waiver of a continuing breach of a covenatit to repair, (y) Where a breach of covenant has continued upwards of twenty years with full knowledge of it on the part of the lessor, and no attempt has been made to take advantage of it, neither the lessor nor his assignee can avail himself of the breach to work a forfeiture. («) Relief against Forfeiture. Breach of Covenants or Conditions respecting Insurance or Payment of Rent. — With respect to leases made before or after the commencement of the act, and notwitlistanding any stipulation to the contrary, relief will now be given against forfeiture (except in cases of non-payment of rent, or breacli of covenant not to assign or underlet, or bank- ruptcy or execution), (a) unless notice has been given requesting the lessee to remedy the breach and make compensation, and (r) Ward v. Dav, 33 L. J. Q. B. 13, (x) Doe v. Bliss, 4 Taunt. 735; 23 & 254; 4 B. & S. 337; 5 B. & S. 359. 24 Vict. u. 38, sect. 6. (s) Grimwood v. Moss, L. E. 7 C. P. {y) Doe v. Jones, 5 Excli. 498; 19 360; 41 L. J. C. P. 239. L. J. Ex. 405. (t) Bae. Abr. Leases, tit. 2; Ward v. (z) Gibson v. Doey, 2 H. & N. 615. Day, supra; Denby v. Nicholl, 4 C. B. (a) And in a mining lease, except N. s. 376; Croft v. Lnmley, 27 L. J. Q. B. covenants for access to books, &c. As 321; Cotesworthf. Spokes, 30L. J. C. P. to forfeiture for non-payment of rent, 221; PelkttJj. Boosey, 31 Ii..T.r'. P. 281. see 23 & 24 Vict. c. 126, sect. 1. («) Doe V. Meux, 4 B. & 0. 606; and see Few v. Perkins, ante, p. * 259. 407 * 262 THE CONTRACT OF LETTING. [BOOK II. tlie lessee has failed to comply, (b) No relief would formerly be granted in the case of forfeiture for the breach of any [*262] covenant other than * covenants to pay rent or insure, except in the case of accident, mistake, or fraud, (c) or where the tenant has been misled by the conduct of the landlord amounting to a waiver, (d) Assignment after Forfeiture. — A right of entry which has accrued on a forfeiture cannot be assigned ; and the assignee of tlie reversion, therefore, cannot take advantage of any forfeiture incurred before the assignment ; but he is entitled to the benefit of the covenant and of the condition of re-entry in respect of any subsequent or continuing breach, (e) Surrender. — Deeds and Agreements of Surrender.^ — We have already seen that a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold interest, and not being an interest which might by law have l:)een created without writing, is void unless it is made by deed (a7itc, p. * 179). An estate for life or years, which cannot be created ^vithout deed, cannot be surrendered witlioat deed. (/) But if the estate may be created, and has been created, without deed, it may be sur- rendered without deed. ([/) It is said that a surrender under seal immediately divests the estate out of the surrenderor and vests it in the surrenderee ; for tliis is a conveyance at common law, to the perfection of which no other act is requisite but the bare grant ; and though it be true that every grant is a contract, and there must be an actus contra actum, or a mutual consent, yet that consent is implied. A gift imports a benefit; and an assumpsit to take a benefit may well be presumed ; and there is > On surrender, see Tayl. Land. & Ten. sects. 507-518; Wood, Land. & Ten. li. 44; also sect. 232; McAdam, Land. & Ten. 2d ed. r. 26. For the decisions, see U. S, Dig. tit. Lnndlord Q. B. 841 ; Crowley v. C. P. 163. Vitty, 7 Exch. 319. (.y) Graham v. Whichelo, 1 Cr. & M. (0 Davison v. Gent, 1 H. & N". 744; 194; M'Donnell .... Pope, 9 Hare, 707; 26 L. J. Ex. 122; Nickells, or NiohoUs, Matthews v. Sawell, 2 Moore, 262; 8 V. Atherstone, 10 Q. B. 944; 16 L. J. Taunt. 270. Q. B. 371; Reeve v. Bird, 1 C. M. & R. (y) Doe v. Williams, 9 D. & R. 30; 31; Walls x<. Atcheson, 11 Moore, 379; 6 B. & C. 41. 411 * 265 THE CONTRACT OF LETTING. [BOOK II. the prima facie presumption being that the rent was paid by the latter as the agent of the original lessee and on his behalf, (z) Surrender and Acceptance of Surrender by Joint-Tenants. — Every act done by one joint-tenant wliich is for the benefit of his companions will bind them ; but those acts which prejudice his companions in estate will not bind them ; and if the benefit be doubtful, two joint-tenants have uo right to elect for the third. A surrender, therefore, or acceptance of a surrender, by one of several joint-tenants, will not, in general, bind the others. («) If, however, one of two joint-lessors lies by and allows the other to act for him, and acquiesces in the acts of his co-owner, and intrusts the whole management of the business in which they are jointly interested to him, he will be bound by his acts, (h) Non-extinguishment by Surrender of Derivative Estates. — Tf a lessee from year to year grants an underlease of part of the premises demised to him, and then surrenders his term, the sur- render will not destroy the estate and interest of the under- lessee, if the latter has not concurred in and been a party to the surrender, (c) Effect of the Surrender on Existing Breaches of Covenant. — The mere surrender of the lease does not relieve the lessee from . his liability in respect of breaches of covenant that liave accrued prior to the surrender. The lessor, therefore, after a surrender remains a specialty creditor for all arrears of rent which become due, before the surrender, upon the lessee's covenants for the pay- ment of rent, ((l) Notice to quit, when necessary. — " ^Yhen a lease is deter- minable on a certaia event or at a particular period, no notice to quit is necessary, because both parties are equally aiDprised of the deteruiination of the term." (c) If, therefore, a lease is grapted for a term of years, or for one year only, no notice to quit is necessary at the end of the term ; (/) but if the tenancy is from (s) Copeland i-. Gubbins, 1 Stark. 96; 35 L. J. Ex. 84; Gt. Western Ey. Co. Doe V. Wood, 15 L. J. Ex. 41. v. Smith, 2 Ch. D. 235; s. c. 3 Ap. (a) Eight V. Cuthell, 5 East, 498. Cas. 165. (b) Dodd V. Acklom, 7 Sc. N. E. 415; (d) Attorney-General v. Cox, 3 H. L. 6 M. & Gr. 672. C. 240. (c) Co. Litt. 338 b; 4 Geo. II. c. 28, (e) Eight v. Darby, 1 T. E. 162; ib. sect. 6; Pleasant v. Benson, 14 East, 54. 237; Cousins v. Phillips, 3 H. & C. 892; (/) Cobb v. Stoke.s, 8 East, 358. 412 CHAP. I.J LANDLORD AND TENANT. * 266 year to year, a half-year's notice must be given on either side, in order to determine the tenancy, and this notice may be given in the first as well as in any subsequent year of the ten- ancy, (g) If a *nian holds under an agreement for a [*266] lease, or under a lease void by reason of its not having been made by deed, for the full term intended to have been granted, an ejectment may be brought against him at the expi- ration of such term virithout any notice to quit, (h) In the case of a tenancy-at-will no notice to quit is necessary ; but there must be a formal demand of possession, or notice of the determination of the will, on the part of the landlord, before any action of ejectment can be brought, (i) The tenant-at-will, too, in order to discharge himself from his liability for rent, or for a reasonable compensation for the use and enjoyment of the demised premises, must give notice to the landlord of the fact of his abandonment of the possession, and of his election to rescind the contract and put an end to the tenancy. If the occupation is the occupation of a servant or agent holding possession of the premises on account and on behalf of his master or principal, the pos.session of the occupier is the possession of the owner himself, and the latter may at any time remove the tenant, and resume possession of the property ^Yithout any notice to quit, (k) If the tenancy and possession are adverse, or if the occupier holds over after the expiration of a lease, or after a forfeiture, or after an agreement for a lease or a contract of sale has gone off and been abandoned, or after the tenancy has been deter- mined by a dissolution of partnership, and continues in posses- sion without the permission and against the will of the owner, no notice to quit is necessary ; but the owner may at once pro- ceed against the wrong-doer by action of ejectment for the recovery of the demised premises, or he may enter and take possession if the tenant leaves the demised premises vacant. (F) (g) Doe V. Smaridge, 7 Q. B. 959; {k) Doe v. Deny, 9 C. & P. 494; Doe V. Nainby, 16 L. J. Q. B. 303; Doe Mayhew v. Suttle, 4 E. & B. 347; 24 L. V. Geeckie, 5 Q. B. 841. J. Q. B. 54 ; White v. Bailey, 30 L. J. (h) Doe V. Stratton, 1 M. & P. 187; C. P. 253. Tress v. Savage, 4 E. & B. 36; 23 L. J. (I) Doe v. Sayer, 3 Camp. 8 ; Doe v. Q. B. 339. Miles, 1 Stark. 181; Doe v. Bluck, 8 C. (0 Kight V. Beard, 13 East, 210; & P. 464. Denn v. Kawlin.s, 10 East, 261; Doe v. Cox, 11 Q. B. 122; 17 L. J. Q. B. 3. 413 * 267 THE CONTRACT OF LETTING. [BOOK 11. If the lessor is only tenant-at-will, or has made a prior lease of the lands, or mortgaged them so as to give the mortgagee a right of entry and to deprive himself of the power of granting a lease for the term specified, the tenant may be turned out without any previous notice to quit from the party who has title, (m) But if the lessor at the time of making of the lease had full right and title to grant the demised premises to the lessee for the term, any subsequent grant, mortgage, sale, or lease cannot affect the tenant's right of possession, or in any way dispense with the ordinary notice to quit. How the Notice may be given, and by Whom. — A [ * 267 ] notice to quit * may be given orally by the lessor or by his agent, (w) unless there has been an express agree- ment or stipulation for a notice in writing, (o) A mere receiver of rents has no implied authority to give a notice to quit ; but an asent or receiver who is intrusted with the general management of landed property, and has a general authority to let lands from year to year, has also authority to determine such tenancies by a notice to quit. (_p) And he may give the notice in his own name, as it is not necessary that his agency and the authority of his principals should appear on the face of the document, {q) The steward of a corporation who is intrusted with the letting ■of the corporate estates, may give a notice to quit, and needs no luthority under seal from the corporation for the purpose. (?•) If there are several joint-lessors or joint-owners of the property, a notice to quit given or signed by one or more of them on behalf of all, is sufficient ; (.s) and the subsequent assent of such joint- owners to a notice previously given by one or more of them on behalf of all, is equivalent to a precedent authority, (f) But if it is e.xpressly provided by tl,e agreement of the parties that a written notice shall be given by all of them under their respect- ive hands, the notice must be signed by all, and a ratification given afterward will not do. (m) The notice may also be given (m) Keech v. Hall, 1 Doug. 21. (r) Roe v. Pierce, 2 Campb. 96. {ii) Timmins v. Rawlinson, 3 Bur. (s) Doe v. Hulnie, 2 M. & E. 433; 1603; Doe v. Crick, 5 Esp. 196. Doe v. Summersett, 1 B. & Ad. 135; (o) Legg V. Bcnion, Willes, 43. Alford v. Vickery, 1 Car. & II. 280. (p) Doe !). Mizem, 2 M. & Rob. 56. {t) Abbott, C. J., 3 B. & Aid. 692. (?) Jones V. Philips, L. R. 3 Q. B. (u) Right v. Cuthell, 5 East, 497. S67; 37 L. J. Q. B. 198. 414 CHAP. I.] LANDLORD AND TENANT. * 268 by an agent on their behalf ; but such notice, in order to be valid and effectual, must be given in the names of the joint-owners, the principals, and not in the name of the agent, unless the agent has a general authority to let their lands. («) And the agent ought to have authority to give the notice at the time it begins to operate; for if the tenant could not safely have acted upon the notice at the time it was given, no subsequent recognition of it by the landlord will make it valid, {y) If one or more of several joint-owners dissent from the notice, such of them as have joined In giving the notice to quit are entitled to enter into and hold possession of the den^ised premises and receive the rents and proflts of the land, jointly with the ten- ant or lessee of the others who have refused to join in such notice, (z) Form and Effect of the Notice — Alternative and Peremptory Notices. — A notice to quit " all the property you hold of me," addressed to the tenant, is a sufficient description of the demised premises ; and any general description applicable to the whole of * the property will suffice. («) But a landlord [* 268 ] cannot give a notice to quit which is intended to apply to a part only of premises which have been demised together at one entire rent. (6) A mere misdescription, however, of the premises comprised in the notice to quit, or a mistake in the Christian name of the tenant to whom such notice is addressed, does not invalidate the notice, provided the tenant has not been misled or prejudiced by such misdescription or mistake. If the notice applies to a year that is past, but was clearly intended to apply to the coming year, and the tenant must have known what time was meant, he is bound by the notice, (c) If the notice is not a peremptory notice to quit, but is drawn up in (x) Jones v. Phipps, supra. a tenancy from year to year may be de- [y) Doe ■». Walters, 10 B. & C. 626; termined ty notice as to part of the 5 M. & R. 357; Doe v. Goldwin, 2 Q. holding if for the purpose of making B. 146; Goodtitle v. Woodward, 3 B. & certain improvements; see some of the Aid. 689. provisions of this act, post, p. * 283. (z) Doe V. Chaplin, 3 Taunt. 120. (c) Doe v. Eoe, 4 Esp. 185; Doe v. {n) Doe V. Church, 3 Campb. 71. Wilkinson, 12 Ad. & K. 743; 4 P. & D. (6) Doe«. Archer, 14 East, 245; ex- 323; Doe v. Spiller, 6 Esp. 70; Doe v. cept under the Agricultural Holdings Kightley, 7 T. E. 63. Act, 38 & 39 Vict. c. 92, sect. 52, where 415 * 269 THE CONTRACT OF LETTING. [BOOK li- the alternative, and seems to have been intended either to put an end to the lease or obtain an increased rent, the tenant may elect to remain in possession, paying an increased rent ; and, such an option having been accorded to him, he cannot, if he chooses to occupy, be treated as a trespasser and wrong-doer and turned out of possession. If, however, the notice is a notice to quit or pay double the annual value under the statutes im- posing penalties on tenants for holding over after a notice to quit, the alternative notice so gi\'en will be construed as a peremptory notice to quit, accompanied by a warning to the tenant of the penal consequences of disobedience, and not as an offer on the part of the landlord of a new bargain and a new lease at an increased rent, (cl) And where a notice to quit on a day termi- nating the tenancy went on to say, " And I hereby further give you notice that, should you retain possession of the premises after the day Ijefore mentioned, the annual rental of the premises now held by you from me will be £160, payable quarterly in advance," it was held by Bramwell and Cotton, L. JJ., Brett, L. J., dissenting, that the notice was not rendered invalid by the addi- tion, (c) Length of the Notice. — We have already seen that, in the case of a tenancy from year to year, six calendar months' notice to quit is required to be given prior to the expiration of the current year of hiring, in order to determine the tenancy between the parties. (/) But whenever the tenancy commences and ends at any of the usual feasts, the customary half-year inter- vening between two half-yearly feasts constitutes ahalf- [*269] year's notice, although the * intermediate time be not exactly six calendar mouths, {g) And where the ten- ancy commenced on a feast-day, and notice was given on the 26/A of Mar eh to -quit on the 29th September, it was held bad, although there were more than 183 days intervening. (A) Al- though rent may be payable under the lease on the usual feast- {d) Doe i;. Jackson, 1 Doug. 17.5. 4 ib. 109; Eogers v. Hull Dock Com- (c) Ahearnu. Bellman, 4 Ex. D. 201. pany, 34 L. J. Ch. 16,5. (/) ^nte, p. * 265 ; but see Eogers (/)) Morgan ». Davies, 3 C. P. D. V. Kingston-upon-Hnll Dock Company, 260; see also Wilkinson v. Calvert, 3 C. 34 L, J. Ch. 165. P. D. 360. (jf) Howard v. Werasley, 6 Esp. 53; 416 CHAP. I.] LANDLORD AND TENANT. * 269 days, yet the length of notice required by the terms of the lease may be six calendar months, in which case a notice given on the 29th September to quit on the 25th March would be bad, as there were not six calendar months intervening. Under tlie Agricultural Holdings Act, 1875, (i) where a half-year's notice, expiring with the year of the tenancy, is by law necessary and sufficient for determination of a tenancy from year to year, a year's notice so expiring shall, by virtue of this act, be necessary, and sufficient for the same. It has been held that this does not apply to a yearly tenancy where, by express agreement, (k) the tenancy is determinable on six months' notice, not a half-year's notice. Q) Of the Time of Quitting specified in the Notice. — If the time at whicli the tenant is to quit is specified in the notice, care must be taken to make such time correspond with the termination of the term of hiring, unless the notice is given in the exercise of a power to determine the tenancy expressly reserved in the lease or agreement; (m) for if the term expires at one period, and the notice is to quit at another, such notice is bad, and the lessor cannot safely act upon it. (n) If a tenant holds possession of a house as a tenant from year to year under an agreement to quit at a quarter's notice, the tenant cannot be expelled at the expir- ation of any quarter that the lessor may choose to select, but the notice must be a quarter's notice to quit at the expiration of the current year, (o) If the hiring is from half-year to half-year, determinable by six montlis' notice to quit, the tenancy may be determined by notice at the expiration of any half-year, (p) If it is a quarterly, a monthly, or a weekly hiring, the notice must be a notice to quit at the expiration of the current quarter, month, or week ; if it breaks into the middle of the quarter, month, or week, it is not a good notice to quit. If the hiring is from month to month, and the rent is made payable weekly, a notice to quit at the expiration of the current month must be given, (i) 38 & 39 Vict. c. 92, sect. 51; see (m) Bridges v. Potts, 17 C. B. N. s. some of the provisions of this act stated, 214 ; 33 L. J. C. P. 338. post, p. * 283. («) Doe v. Lea, 11 East, 312. (k) Sect. 54. (o) Doe v. Donovan, 1 Tannt. 555. (Q Wilkinson v. Calvert, 3 C. P. D. (p) Doe v. Grafton, 18 Q. B. 496; 360. 21 L. J. Q. B. 276. VOL. 1. 27 417 * 270 THE CONTRACT OF LETTING. [BOOK II. [*270] and not a notice expiring at any one of the * weeks without reference to the termination of the month. The length of the notice, however, may be varied by local custom and usage, and by the agreement of the parties. When the hiring is for one single quarter, month, or week, no notice at all is re- quisite, (y) The term will, in the absence of an express agree- ment to the contrary, be taken to commence at the time of the tenant's entering and taking possession of the demised premises. A notice " to quit at the end of the first year of your tenancy, which expires half a year after the date of this notice," will be sufficient, and so also will a notice " to quit at the expiration of the current year of your tenancy," provided such notice was given half a year prior to tlie expiration of the carrent year of hiring, (r) Sometimes the notice is given in the alternative, in order to hit one of two ^jeriods on which the term is known to end, and it has been held that such a notice is a perfectly good notice, and possesses all the certainty that is reasonably requisite for the information of the tenant, (s) A notice to a weekly ten- ant, whose tenancy commenced on Wednesday, to quit on Friday, provided his tenancy commenced on Friday, or otherwise at the end of his tenancy next after one week from the date thereof, was held to be a good notice to determine the tenancy at the expiration of a week from the subsequent Wednesday, (t) Of the Application of the Notice to the Current Term of Hiring. — If the notice is made to apply to the current term of hiring, and it is given too near the end of the current term to be a good notice for that term, it will not apply to the next term of holding, as that is not the current term, and a fresh notice to quit, there- fore, must be given, (■u) The notice is always understood to ap- ply to the year in which it is given, whether it expressly refers to the " current year " or not ; and it will not operate as a notice to quit for the succeeding year, unless it appears plainly to have been the intention of the lessor that the notice, if invalid for the first year, should apply to the next year of holding, (x) il) Doe«. Bayley, 5C. &P. 67; Doe (s) Doe v. Wrightman, 4 Esp. 6. V. Raffan, 6 Esp. 4 ; Doe v. Hazell, 1 (/) Doe v. Scott, 4 Moo. & P. 20. Esp. 94; Kemp v. Derrett, 3 Campb. («) Doe v. Morphett, 7 Q. B. 577; 14 511; Huffell V. Armitstead, 7 C. &P. L. J. Q. B. 345. 56. (x) Mills V. Goff, 14 M. & "W. 75. ()•) Doe V. Butler, 2 Esp. 589. 418 CHAP. I.] ■ LANDLOKD AND TENANT. * 271 Where a notice, dated the 27th, and served on the 28tli, of Sep- tember, required a tenant to quit " at Lady Day next, or at the end of your current year," and it appeared that the then ourreii; year of hiring ended on Michaelmas Day (the 29th of Septem- ber), two days after the day of tlie date and one day after the service of the notice to quit, it was held that it could not be presumed that the notice was *intended to apply to the [ * 271 ] year in which it was given, and of which two days only remained, but that it must be taken to apply to the next year, {y) So where the term of hiring commenced and ended on the 2d of February, and the lessor on the 22d of October, 1833, three months and ten days only before the expiration of the year, gave the tenant notice to quit " at the expiration of half a year from the delivery of this notice, or at such other time as your present year's holding shall expire after the expiration of half a year from the delivery of this notice," it was held that the notice, though bad for Feb- ruary, 1834, the succeeding February, was a good notice for February, 1835. {z) The Commencement of the Current Year of the Tenancy ^ is generally regulated by the commencement of the original hold- ing. Where premises were demised by an agreement dated the " 13th of August, 1838," for the term of "one year and six months certain," at a yearly rent payable quarterly, " three cal- endar months' notice to be given on either side previous to the termination of the tenanc}'," and the tenant entered and held possession beyond the year and six months, and on the 7th of May, 1840, the lessor gave the tenant notice to quit on the 13th August next, the notice was held to be good, as the year of hir- ing was to be calculated from that day, and not from the termi- nation of the year and six months, (a) And where a tenant entered into possession under an agreement for a lease for a term of five years and a half, and the lease was never granted, but the tenant continued to occupy, and when the five years and a half were nearly expired, negotiations were entered into for a further lease at an increased rent, to commence on the expiration of the 1 See U. S. Dig. tit. Landlm-d and Tenant, sect. 927; ib. tit. Time. {y) Doe V. Culliford, 4 D. & E. 248. (i) Doe v. Dohell, 1 Q. B. 806; Doe (z) Doe V. Smith, 5 Ad. & E. 353. v. Samnel, 5 Esp. 173. 419 *272 THE CONTRACT OF LETTING. [BOOK II. term of five years and a half, and this second lease was never executed, but the defendant continued in the occupation of the premises, paying the increased rent, it was held that the current year of the tenancy must be calculated from the original entry of the tenant upon the premises, (b) Where, on the other Iiand, a lessee of a term granted an underlease for fourteen years and a half from the 25th of December, and the term consequently expired on the 24th of June, and the imderlessee continued iu possession, paying rent, it was held that the subsequent tenancy commenced from the termination of the preceding underlease, livui that a notice given on the 24th of December to quit on the 24th of June was a valid notice, (c) [ * 272 ] * Calculation of the Current Year from one of the usual Feast-Days. — The term of hiring is generally, by the ex- press or implied agreement of the parties, calculated from some one or other of the Cjuarterly feasts ; and if the tenant enters in the middle of a customary quarter, and afterwards pays his rent for that half-quarter, and continues then to pay from the commencement of a succeeding quarter, he is not a tenant from the time of his coming in, but from the succeeding quarter-day. (d) But if he pays his rent at the end of the quarter or half-year from the time of his coming in, the tenancy will commence from the day of his entry, (g) If the notice be given to quit at Michaelmas generally, it is good for either Old or Xew Michaelma.s. Prima flick, it would be for New ]\Iichaelmas ; but if the holding was from Old Michaelmas, this notice would do for that also. (/) Where a notice was given on the 27th of September " to quit at the expiration of the term for which you hold," evidence was permitted to be given of a general custom of the country to let from Lady Day, and of the fact of the rent being due at Mich- aelmas and Lady Day, and it was left to the jury to presume, in tlie absence of evidence to the contrary, that the tenancy, like other tenancies in that part of the country, was a tenancy from (h) Berrey r. Lindley, 4.'=lc. N. K. 61; (rf) Doe v. Jnlmsoii, 6 Esp. 10; Doe 3 M. &r;r. 498; and see Kelly v. Patter- v. Stapleton, 3 C. & P. 275. son, L. R. 9 C. P. 681. (c) Doe v. Matthews, 11 C. B. 675. (c) Doe V. Lines, 11 Q. B. 402; 17 L. (/) Doe v. Pen-in, 9 C. & P. 468; J. Q. B. 108; Walker v. Code, 6 H. & Doe v. Vince, 2 Campb. 256. N. 594; 30 L. J. Ex. 173. 420 CHAP. I.J LANDLOKD AND TENANT. * 273 Lady Day to Lady Bay. (^) It has been held that, since the exis- tence of the new style sanctioned by act of parliament, a lease by deed of lands " to be holden from the feast of St. Michael " must be taken to mean New Michaelmas, and that extrinsic evidence is not admissible to show that it meant a liolding from Old Michaelmas. (A) But although the oral expressions and agreements of the parties are inadmissible to alter or contradict the written contract, yet all the surrounding circumstances may be regarded ; and if it can be shown that the rent has always been paid at Old Michaelmas, or that by the custom of the country lands are always let at Old Michaelmas, the holding would be deemed to be from the latter period, (i) Admissions by the Tenant of the Commencement of the Term. — The mere service upon the tenant of a notice to quit at a par- ticular time is not prima facie evidence of the termination of the term at the time mentioned in such notice. Qc) But if the ten- ant is expressly told that he must leave after the expiration of six months, or if a written notice is served personally on the lessee, and the latter reads it, and makes no objection to it, this is prima * facie evidence to go to a jury that [* 273 ] the time of quitting is correctly stated in the notice. If he cannot read, or does not read, the notice in the presence of the person who serves it upon him, it nmst go for nothing. {!) An admission by the tenant of a holding corresponding with the time mentioned in the notice may be rebutted by direct evidence of a different holding, (m) If the period of the commencement of the term is uncertain, and the lessor applies to the lessee to ascertain the time of the commencement of his lease, the lessee is bound by the information he gives, and cannot be permitted afterward to set up a different holding for the purpose of defeating pro- ceedings that have been taken by the landlord upon the faith of such statement. (») {q) Doe V. Lam'b, Adam's Eject., 4th (Ic) Doe p. Calvert, 2 Campb. 388. ed. 272. (I) Thomas t). Thomas, 2 Campb. 647; (h\ Doer. Lea, 11 East, 312; Smith Doe v. Forster, 13 East, 405; Doe «. V. Walton, 1 M. & Se. 382; 8 Bing. Womhwell, 2 Campb. 559. 235. (m) Oakapple c. Copous, 4 T. R. 361 ; (i) Furley v. Wood, 1 Esp. 198; Doe Brown v. Burtin.shaw, 7 D. & R. 610. V. Benson, 4 B. & Aid. 589; Den v. Hop- (n) Doe ». Lambly, 2 Esp. 635. kinson, 3 D. & E. 507. 421 * 274 THK CONTRACT OF LETTING. [BOOK 11. Different Periods of Entry. — When the demised premises are entered upon at diSereiit periods, the notice to quit ought to refer to the time of tenant's entry upon and holding of the principal subject-matter of the demise. Thus if buildings and land are let together, to be entered upon at diiferent times or holden from different periods, and the buildings constitute the principal subject-matter of demise, and the land is merely acces- sorial thereto, the notice to quit should refer to the tenant's entry upon and holding of the buildings, and not the land ; and it is a question of fact which is the principal and wliich the accessorial subject of demise, (o) Though part of a farm is to be entered upon and quitted at different periods, i.e., the pasture at Old Lady Day, the arable land at Old Candlemas, and the meadow at Old ilay Day, yet that is a letting from Lady Day to Lady Day ; for it is no more- than the custom of most counties would have directed without any special words for that purpose in any taking from Old Lady Day, viz., that the arable land shall be entered upon at Candlemas to prepare it for the Lent corn, and the meadows not till May Day, when in the northern counties they are usually heyned for hay. (p) Where a tenant entered into possession of a farm under an agreement " to enter on the tillage land at Candlemas, and on the house and all other the premises on Lady Day following, and to quit the farnr according to the times of entry as afore- said," and the rent was reserved at Michaelmas and Lady Day, it was held that a notice to quit, delivered half a year before Lady Day, but less than half a year before Candlemas, was good, the taking being in sul^stance from Lady Day, with a privi- [*274] lege for the incoming tenant to enter *on the arable land at Candlemas for the sake of ploughing, &c. (q) And where the lessee of a dwelling-house, buildings, and bleach- ing manufactories, pasture and meadow land, entered into posses- sion under an agreement for a lease, by which it was stipulated that the term of hiring should commence, as to the meadow ground from the 25th of December last, as to the pasture from the 25th of March next, and as to the houses, out-houses, and (o) Doe w. Howard, ]1 East, 49S; (p) Doe -ii. Snowdon, 2 W. Bl. 1224. Doe V. Hughes, 7 M. & W. 141; Doe v. \q) Doe v. Spence, 6 East, 120. Rhodes, 11 M. & \V. 600. 422 CHAP. I.] LANDLORD AND TENANT. * 275 other buildings, and all the rest of the premises, from the 1st of May, and the first half-year's rent was made payable on the day of Pentecost, and the other at Martinmas, it was held that, the substantial subject of demise being the house and buildings for the purpose of the manufacture, the time limited for taking pos- session thereof was the substantial time of entry, to which a notice to quit ought to refer, and not the 25th of December, the time limited for the taking possession of the meadow land, which was merely auxiliary to the principal subject of demise, (r) Service of Notice to Quit. — If the notice to quit is served upon the actual occupiers of the demised premises, proof of such service is sufficient to sustain an action of ejectment, (s) Where the lessee puts another into possession or occupation of the demised premises, the party so let into possession is presumed to be the assignee of the lessee, and a notice to quit served upon such occupier will determine the term and sustain an ejectment against the lessee. Thus where the tenant went away leaving his son-in-law in possession, and the lessor gave the son-in-law notice to quit and brought ejectment, and the lessee came forward to defend the possession, saying that he had received no notice, and that his term was not determined, it was held that the notice was sufficient, (f) If the party in occupation of the hoiise is the mere servant of the lessee, the notice should be a notice to the lessee to quit, and not a notice to the servant, (m) A delivery of the notice to the wife or servant of the lessee at the dwelling-house of the latter is a sufficient service, (x) But a servant to whom it is delivered should be expressly told that it is a notice to quit, and should be requested, either orally or by means of a written or printed address or direction, to deliver it to the tenant, (y) If there is a personal service of the notice upon the tenant himself, no written direction or address upon the notice is necessary ; (z) and if the notice is directed to the tenant by a wrong Christian * name and he ne- [ *275 ] gleets to repudiate it or send it back, he is deemed to (r) Doe 1). Watkins, 7 East, 566. v. Dunbar, 1 M: & M. 11; Alford v. (s) Roe V. Street, 2 Ad. & E. 331. Vickery, 1 Car. & M. 283; Taiiham v. (t) Doe V. Williams, 6 B. & C. 41; 9 Nicholson, L. R. 5 H. L. C. 561. D. & R. 31. ' iy) Doe v. Lucas, 5 Esp. 152; Smith («) Doe V. Woodman, 8 East, 228. v. Clark, 9 Dowl. 202. (x) Jones n. Marsh, 4T. R. 464; Doe (s) Doe v. Wrightman, 4 Esp. 5. 423 * 275 THE CONTKACT OF LETTING. [BOOK II. have waived the misdirection, and is bound by such notice, (a) If two or more persons hold possession of the demised premises as joint-tenants or tenants-in-common, notice to one of them is sufficient notice to all to determine the tenancy. (6) Service of Notice through the Post-oflSce. — If a notice to quit, properly addressed to the landlord or his authorized agent, has been put into the post-office, and is delivered within the usual business hours, on the 25th of March, that will be a good notice for the 29th of December following, although the landlord does not actually receive it until the 26th. (c) Acceptance of Informal Notice — Proof of Notice. — If a ten- ant gives his landlord an insufficient notice to quit, and the land- lord at first assents, but ultimately refuses to accept the notice, and the tenant quits according to his notice, the tenancy is not determined, {d) A written notice to quit may be proved by the production of a copy, although no notice has been given to pro- duce the original, (e) Waiver of Notice to Quit. — If the tenant remains in posses- sion after the expiration of a good and valid notice to quit, his possession then becomes an adverse tenancy and possession, and the landlord may either bring an action of ejectment against him, or proceed in the county court or before justices of the joeace for the recovery of the possession of the demised premises. But if he permits tlie tenant to remain in possession after the expiration of the notice, and demands and accepts rent in respect of the tenant's occupation of the property subsequently to the notice, this amounts to a waiver of the notice. (/) The same result follows if the lessor distrains for rent which he claims to be due in respect of the tenant's occupation subsequently to the expiration of tlie notice. (//) But if a banker or agent of the lessor, without any special authority from the latter, receives rent from the tenant, the act of such unaiithorized agent does not amount to a waiver of the notice. Qi) The money, more- la) Doe V. Spiller, 6 Es,p. 70. (/) Gooririfjht v. Cordwent, 6 T. R. (b) Doer. Crick, 5 Esp. 196. 219; Doe u Batten, Cowp. 243; Blyth (c) Papillon v. Brunton, 5 H. S; N. ■!;. Dennett, 13 C.B. 178; 22 L. J. C. P. 518; 29 L. J. Ex. 205. 79. (d) Bessell v. Landesberg, 7 Q. B. (. Wildin, L. R. 3 Ex. (p) Gray v. Bompas, 11 C. B. N. s. 203; 37 L. J. Ex. 173; see Holme v. 520; Brunskill, 3 Q. B. D. 495. 213. 425 * 277 ■ THE CONTKACT OF LETTING. [BOOK II. of the terms of the original lease as are applicable to a yearly tenancy, {q) If, therefore, the lease contained a proviso for re- entry in case of non-payment of rent, the proviso is impliedly annexed to the yearly tenancy, (r) But if there is any evidence to show that the holding after the expiration of the lease was upon new and different terms, the legal presumption is rebut- ted, (s) and the nature of the holding becomes a question of fact. Whether any particular covenant is applicable to a yearly tenancj'' is in some cases a question of fact ; (t) in other cases it will be a question of law. When a demise is deter- [*277] mined * by the expiration of the landlord's estate, and the tenant continues to hold under the remainder-man, paying the same rent, the question whether a term contained in the former tenancy is adopted into the new contract of demise, is a question of fact. If such a tenant continues to hold under the remainder-man, and nothing passes between them except the payment and receipt of rent, the new landlord is not bound by a stipulation contained in the former tenancy, which is not known to him in fact, and is not according to the custom of the country, (c) Double Yearly Value for Holding over. — Any tenant wilfully holding over and retaining possession of the demised premises after the determination of his term, and after possession has been demanded and notice in writing has been given him by the lessor, is liable to pay to the person kept out of possession double the yearly value of the lands, &c., detained, {v) An action for the recovery of this penalty may be brought by the landlord, and the landlord alone, either before or after he has recovered possession of the land by an action of ejectment, (x) (q) Torriano v. Young, 6 C. & P. 11; (/,) Hyatt v. Griffiths, 17 Q. B. 505; Thomas v. Packer, 1 H. & N. 671; Oakley v. Monck, L. R. 1 E.\. 195; 35 Bishop V. Howaid, 3 D. & P.. 298; L. J. Ex. 87. Buckworth v. Simpson, 1 C. M. & K. {//) Oaklov v. Monck, L. K. 1 Ex. 843; Arden v. Sullivan, 14 Q. B. 839; 159; 35 L. .1. Ex. 87. 19 L. J. q. B. 271; Beale v. Sanders, 3 (u) 4 Geo. II. u. 28, sect. 1. As to Bing. N. C. 850. the computation of the yearly value, (r) Williams, J., Doe v. Amey, 12 see Eobinson v. Learoyd, 7M. & W. 48. Ad. &E. 480; Hutton n. Warren, 1 M. (,r) Soulsby v. Ncving, 9 East, 310; & W. 466. HarcourtD. Wyman, 3 Exch. 817; Swin- (s) Mayor of Thetford v. Tyler, 8 Q. fen v. Bacon, 6 H. & N. 846; 30 L. J. B. 95. Ex. 37. 426 CHA.P. I.] LANDLORD AND TENANT. * 278 But it has been held that the act applies only to the case of a wilful and contumacious holding over by the tenant after a valid notice to quit, and not to a holding over under a bona Jide claim of title or right, though erroneous. (?/) If at the time of her marriage a woman is tenant of certain premises, and has received notice to quit, the husband after the marriage incurs the obli- gation of giving up possession of the premises, and may render himself liable to an action for double value for holding over ; for if the wife incurs the penalty, the husband will have to pay it, and he cannot get rid of the obligation by pleading ignorance (for it is his duty to make inquir}'), nor by showing that his wife deceived him, or concealed the notice to quit, (s) A weekly or quarterly tenant has been held not to come witliin the operation of the statute, (a) In the case of a tenancy from year to year, the ordinary notice to quit at the end of the current year of hir- ing is a sufficient demand of possession to entitle the lessor to double yearly value. (I) If the tenant holds under a lease for a term of years certain, a notice to quit at the expiration of such term is likewise a sufficient demand of possession, and such notice may be given previous to the expiration * of [*278] such term, or at any time afterward, so long as the ten- ant continues to hold as a tenant-at-will. (c) If the landlord has done any act amounting to a waiver of his notice to quit, he cannot make such notice the foundation of an action for double value, (d) Double Rent for Holding over. — By the 11 Geo. II. C. 19, sect. 18, it is enacted that, if any tenant gives notice to the lessor of his intention to quit at a particular time, and does not deliver up possession of the premises at the time mentioned, such tenant, his executors, &c., shall from thenceforth pay to the landlord or lessor double the rent which he would otherwise have paid, to be levied, sued for, and recovered at the same times and in the same manner as the single rent. The tenant's notice to quit (y) Hirst v. Horn, 6 M. & "W. 395; (b) Wilkin.son v. Colley, 5 Burr. Piige V. More, 15 Q. B. 6Si; Swinfen v. 2698; Poole v. "Warren, 8 Ad. & E. 582; Bacon, sitpra. Lake v. Smith, 4 B. & P. 179. (2) Lake v. Smith, 1 B. & P. K. R. (c) Cutting v. Derbj', 2 W. Bl. 1075; 179. Messenger v. Armstrong, 1 T. R. 53. (a) Lloyd v. Rosbee, 2 Campb. 454; (d) Ryal D. Rich, 10 East, 47. Sullivan v. Bishop, 2 C. & P. 359. 427 *279 THE CONTRACT OF LETTING. [BOOK II. need not be in writing, in order to support the lessor's claim to double rent, nor need the lease which the tenant has determined by his notice to quit be a lease in writing, (e) But the notice must be a good notice to quit at some fixed time, and at a period when the tenant is able by notice to put an end to the tenancy. If the tenant merely gives notice that he will quit " as soon as he can possibly get another location," (/) or gives notice to quit in the middle instead of at the termination of the current term of hiring, or a notice of too short a duration, and which does not therefore bind the lessor, the lease is not determined, and there cannot, consequently, be any holding over by the tenant, {g) A tenant who holds over for one year after notice to quit, pay- ing double rent, may quit at the end of such year without fresh notice, {h) Determination of Tenancies by Railvray Notices. — If lands holden by tenants from year to year are required by railway companies for the making of a railway, the company may in general, under the powers of their act, either give the ordinary landlord's notice to quit, ending with the current year of the tenancy, in which case no compensation would be payable in respect of any unexpired term, or six months' notice, to be given at any time, in which case the tenant will be entitled to com- pensation for the value of the term between the expiration of the six months' notice and the time when a regular landlord's notice would have expired. If, after having given a notice not ending with the expiration of the current year, the company inform the tenant that he may hold on till the end of the cur- rent year, and he does so, the situation of the parties is '[*279] the same as if *a regular landlord's notice had been originally given, {i) If the tenant continues in posses- sion after the expiration of the notice, he holds simply as a ten- ant at sufferance, without any estate or interest at all in the premises, unless rent is received from him or the premises are re-demised to him. (Jc) (c) Timniins u. Eowliiison, 3 Burr. (A) Booth v. Macfarlane, 1 B. & Ad. 1608. 904. (/) Farrancec. Elldngton, 2Campb. (i) Res. v. Lend. & Southamp. Ey. 592. Co., 10 Ad. & E. 3. ig) Johnstone v. Huddlestone, 4 B. (Jc) Ex parte Nadin, 17 L. J. Ch. & C. 922. 421. 428 CHAP. I.] LANDLORD AND TENANT. * 279 Recovery of Possession. — Possession of land cannot be gained by an act of trespass which has never been acquiesced in by the landowner. Every person who trespasses upon another man's land and reniains there tortiously may be expelled by main force. (/) But if he has once gained a lawful possession which is determined, and he then continues unlawfully to hold the land, the landowner is , punishable for a forcible entry if he enters with a strong hand to dispossess him. (?«) The tenant cannot maintain an action for damages against the landlord for a trespass upon the realty in respect of the forcible entry; for there is no trespass by the latter in entering on property which is his own, and on which he has a legal right to enter. There- fore if the tenant of a dwelling-house holds over wrongfully, and the landlord enters and pulls down the house, or stops up the chimney, or takes off the roof, and the tenant brings an action against the landlord for trespassing on the land, it is an answer that the house was the defendant's house, and therefore that he entered and pulled it down, &c. (m) It has been laid down by Parke, B., that " where a breach of the peace is com- mitted by a freeholder who, in order to get into possession of his land, assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party,'' and that " it is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly, though in so doing a breach of the peace was committed." (o) Tindal, C. J., is reported to have said that " if the landlord in making his entry upon the tenant has been guilty either of a breach of a positive statute or of an offence against the common law, such violation of the law in making the entry causes the possession thereby obtained to be illegal." (p) But this has since been decided not to be law; and it is now well established that at the determina- (Z) Browne v. Dawson, 12 Ad. & E. (o) Harvey ■!>. Bridges, 14 M. & W. 629. 442. (m) Kex V. Bathurst, Say, 227; Eex {p) Newton v. Harland, 1 Sc. N. E. V. Wilson, 8 T. R. 361. 490. (m) Burling v. Eeed, 11 Q. B. 904; Davison v. Wilson, 17 L. J. Q. B. 196. 429 * 280 THE CONTRACT OF LETTING. [BOOK II. tion of the term the landlord may enter and take pos- session of the demised premises, and, after civilly [*280] * requesting the tenant to depart, may, in case of his re- fusal, gently lay hands upon him and turn him out, sub- ject only to the liability to be indicted for a forcible entry, (j) If the landlord has no right to enter, and he takes advantage of the temporary absence of the tenant to fasten up the door of his apartments and exclude him from re-entering, the tenant may recover damages against the landlord for breaking and entering, although the landlord has never actually entered the rooms. (?■) License to eject — Where it was provided that, in case of non-payment of rent or non-performance of covenants, it should be lawful for the lessor and his agents immediately to enter upon and take possession of the demised premises, and to expel the lessee and all persons claiming under liim, without any legal process, as effectually as any sherilf might do in case the lessor liad obtained judgment in ejectment for the recovery of pos- session, and a writ had issued thereon to the sheriff in due form of law, and that the leave and license of the lessee miglit be pleaded in any action brought by the latter for such entry and ouster, and the agreement be used as conclusive evidence of such leave and license, it was held that the lessor had a right, as between himself and the lessee, under this agreement, to eject the lessee by main force, and might plead such license in bar of an action of trespass brought by the latter, (s) Ejectment under Provisos for Re-entry. — When the lessor has a right to re-enter in case of non-payment of rent, and brings an action of ejectment, he must show that demand was made of the rent upon the demised premises, unless there is no one there on whom demand can be made and the demand has been made on the party liable to pay, (t) and that the same or some part thereof has not been paid, (it) unless the proviso is for (?) Davis V. Burrell, 10 C. B. 822; (s) Kavanagh v. Gudge, 7 Sc. N. R. Harvey v. Bridges, 14 M. & W. 437; 1 1025; 7 M, & Gr. 316. Exch. 261; Jones v. Chapman, 2 Exch. (<) Manser v. Dix, 8 De G. M. & G. 803, 821 ; Pollen v. Brewer, 7 C. B. N. s. 703. 371. (v) Bro. Abr. Demande, 19; KiJ- (r) Lane v. Dixon, 3 C. B. 776. welly v. Brand, Plowd. 70 a, b. 430 CHAP, I.] LANDLOKD AND TENANT. * 281 re-entry without any demand of the rent, (x) The demand must be of the precise sum due, and must be made on the day wlien the rent was due and payable by the terms of the lease, and at a convenient time (which ought to be an hour) before sunset, (y) Where the proviso is for re-entry in case of non- payment of rent for the space of ten, fifteen, or any other num- ber of days after it has become due, the demand must be made on the tenth or last day. {z) "Where rent was payable quarterly, and two quarters were in arrear and * were [*281] demanded together, it was held that the lessor could not avail himself of the proviso for re-entry in case of non- payment for twenty-one days, as the first quarter ought to have been demanded on the twenty-first day after it had become due. («) ■Where there is no Stifficient Distress, and one-half year's rent is due and in arrear, and the lessor has a right to re-enter for non-payment thereof, proceedings may be taken under the 15 6 16 Vict. c. 70, sect. 210. (b) The operation of the statute appears to be confined to cases where the tenant was six months in arrear at the very time when the landlord had recourse to the statutory remedy. If the landlord distrains for the rent due, he waives any breach of the condition of re-entry which had accrued prior to the taking of the distress, (c) Proof of no sufficient distress at the time the right to re-enter accrued is prima facie proof of there being no sufficient distress at the time of the service of process, (d) If more than half a year's rent is in arrear, the case is within the statute. («) ; but if more than half-a-year's rent is due, and there is sufficient distress on the premises to satisfy one half-year, the landlord cannot pro- ceed under the statute, but must make his demand and entry at common law. (/) But the distress must be available ; and, therefore, if the tenant locks up the premises, so that the land- (x) Doe V. Masters, 2 B. & C. 490. to recovery of possession by landlord {y) Fabian's case, Cro. Eliz. 209; Co. from a company being wound up, see Litt. 202 a; 1 Saund. 287, n. 16; Doe v. General Share Co. v. Wetly Brick Co., Brydges, 2 D. & R. 29; Acocks v. Phil- 20 Ch. D. 260. lips, 5 H. & N. 183. (6) Doe v. Franks, 2 C. & K. 678. (2) Hill V. Grange, Plowd. 172a, 173; (c) Cotesworth v. Spokes, 30 L. J. Clun's ease, 10 Co. 129 a; Wood and C. P. 222. Chiver, 4 Leon. 180; Doe v. "Wandlass, (d) Doe v. Fuchau, 15 East, 286. 7 T. R. 117. (c) Doe v. Alexander, 2 M. & S. 625. (a) Doe V. Paul, 3 C. & P. 613. Aa (/) Doe u. Roe, 9 Dowl. 648. 431 * 282 THE CONTEACT OF LETTING. [BOOK II. lord cannot get at the goods which may happen to be upon them, he may proceed under the statute, {g) The right of re- entry must be absolute and unqualified. If he has a right only to re-enter and hold until arrears of rent are satisfied, and not to avoid the lease altogether, he cannot avail himself of the statute, (h) The tenant or his assignee or sub-lessee (i) may, at any time before trial (sect. 212), stay all further jjroceedings by paying or tendering to the lessor, or bringing into court, the rent and arrears with costs. (Ji) Recovery of Possession where the Demised Premises are de- serted. — The 11 Greo. II. c. 19, sect. IG, and the 57 Geo. III. c. 52, give a summary remedy by proceedings before justices for recovery of demised premises, vrhen the tenant has deserted them, and left them uncultivated or unoccupied, so that no sufficient distress can be had. And by the 3 & 4 \^ict. c. 84, police magistrates and police constables ^\•ithin the metropolitan police district are enabled to put the lessor into possession and determine the lease. But this power is not by any [*282] of the provisions of the last-named * statute, or by the 11 & 12 Vict. c. 43, sect. 34, vested in the Lord Mayor or alderman sitting in the justice room at the Mansion House or Guildhall. (/) The record of the proceedings need not show that any complaint or inquiry was made before the justices upon oath, nor state that the landlord had a riglit of re-entry, {m) Where a bankrupt lessee of a dwelling-Iiouse went away, leav- ing a person in the house whose possession was merely colorable, it was held tliat the justices were warranted in finding tliat the lessee had deserted the premises, {n) But where the tenant left his wife and children in the house, Ijut took away his furniture and went away himself, it was held that there was no deser- tion; and the judges of assize, on appeal, ordered restitution of the demised premises with costs, (o) Where the justices go the first time and find the premises deserted, tlien, unless some one appears and pays the rent, Avhen they go the second {g) Doe V. Dyson, M. & M. 77. (m) Basten v. Carew, 5 D. & E 55S (h) Doe V. Bowditch, 8 ( ). B. 973. {n) Ex parte Pilton, I B. & AM. (i) Doe V. Byron, 1 C. B. 623. 369. [k) Roe -0. Davis, 7 East, 363. (o) Aslicroft i). Bourne, 3 B. & Ad [l] Edwards «. Hodges, 15 C. B. 477. 684. 432 CHAP. I.J LANDLORD AND TENANT. * 283 time they are to deliver possession to the lessor. The pro- ceedings of the justices are examinable in a summary way by the judges (sect. 17). Recovery of Possession of Houses and Small Tenements. — The statute 1 & 2 Vict. c. 74, enables justices of the peace to give possession to the landlord of houses and land held for a term not exceeding seven years, rent free or at a rent not exceed- ing £20 per annum, upon which no fine is payable, provided the tenancy has been duly determined and notice has been given as therein provided, (p) If under this statute a tenancy is proved before the justices, and a determination of that tenancy, and a refusal on the part of the tenant to quit, it is not competent to the tenant to set up the title of any third party, or raise any question of title before the magistrate, (q) If the term or inter- est of the tenant in any house, land, or corporeal hereditament, where the value of the premises or the rent does not exceed £50 by the year, (r) and on which no fine has been paid, has been duly determined, and the tenant or (if he does not occupy or only occupies part) any person by vifhom the premises or part of them are then actually occupied, neglects or refuses to deliver up possession, the landlord or his agent may, by proper proceed- ings in the county court, obtain a warrant of possession, (s) The plaint must be brought in the district where the tenements are situate ; and the court will have jurisdiction, even though a bona fide question of title is raised, * where [*283] neither the annual value of the lands nor the rent pay- able in respect thereof exceed £20. {t) If, however, the annual value or rent exceed that sum, the jurisdiction of the court will be ousted if a hona fide question of title is raised ; and even if neither rent nor value exceed £20, yet the defendant may have the action tried in a superior court if he can satisfy a judge that the title to lands of greater annual value than £20 will be affected by the decision, {u) A tenant is in general estopped from disputing his landlord's title ; but he may show that it has {p) Delaney v. Fox, 1 C. B. N. s. niial value. Harrington, Earl of, ii. Eam- 166. sey, 8 E.xch. 881; 2 E. & B. 669; 22 L. (?) Rees V. Davies, 4 C. B. N. s. 62. J. Q. B. 460. (r) If the rent does not exceed £50, (s) 19 & 20 Vict. c. 108, sect. 50. the County Court has jurisdiction, (0 30 & 31 Vict. c. 142, sect. 12. though the premises are of greater an- (u) 30 & 31 Vict. u. 142, sect. 13. VOL. I. 28 433 *284 THE CONTRACT OF LETTING. [BOOK II. expired ; and if there is some evidence to support the defence, and it is not a mere illusory claim, and the rent or annual value of the premises exceed £20, the judge of the county court should refrain from trying the question, (x) Where on the hearing of a plaint it appeared that one of the matters seriously in dispute was whether the whole or part of a house had been demised, it was held that the inquiry involved a question of title, and that the county court had no jurisdiction in the matter, (y) A decision of a county court judge, that the title is not in question, is by no means conclusive of the fact. The question may be brought before the superior courts on motion for a prohibition by affidavit ; and if the court directs that the party should declare, the question becomes one of evi- dence, (z) Neither the tenant nor any one claiming through him, nor any one put into possession by him, can, during the demise, controvert the landlord's title in an action of ejectment ; but he may show that the title has expired. («) If a tenancy is sought to be established through the medium of payment of rent to the plaintiff or to his agent, it must be shown that the rent was either paid by tlie defendant himself, or by some person through whom he claims, or by his authorized agent ; for an unauthorized payment of rent by a stranger will not be binding on the defendant, or in any way affect his rights. Where a party distrained for rent, and the lessee paid the rent due under the distress without protest or objection, it was held that he could not after that controvert tlie title of the plaintiff, (b) Rights of Outgoing and Incoming Tenants — A-way-going Crops, Allowances for Tillage, Manures, . Faulkner, 2 Q. B. 936; (z) Opperman v. Smith, 4 D. & E, as to a distres.s for tithe rent-charge, see 33; Johns v. Jenkins, 1 Cr. & M. 227. Ex parte Arnison, L. R. 3 Exch. 36. (a) Dibble v. Bowater, 2 Ell. & Bl. (y) As to pleas of justification of the 564. seizure of goods under this statute, see (b) Rand v. Vaughan, 1 Sc. 670. Williams v. Roberts, 7 Exch. 629. 485 *324 THE CONTRACT OF LETTING. [BOOK II. applies solely to the goods of a tenant, and not to those of a stranger. If, therefore, a lodger removes his goods to prevent them from being distrained for rent due from the tenant whose lodger he is, the landlord cannot follow them and distrain them, (c) To deter tenants from fraudulently removing their goods to avoid a distress, a penalty to the amount of double the value of the things distrained is imposed upon the offender, which may be recovered by an action of debt, or (if the goods do not exceed £50 in value) by a summary proceeding before two justices, (cl) ■What amounts to a Distress for Rent. — It is not necessary, in order to make a distress for rent, that the lessor or his agent sliould take corporal possession of the things intended to be distrained. It is sufficient if the lessor, in person or by deputy, enters upon the demised premises and announces to the tenant or his servants, or the persons in actual occupation of the prop- erty, that he detains them for his rent. Thus, where a stranger was about to remove some goods he had deposited on the demised premises, and the lessor, hearing of liis intention, came upon the land and declared that he would not suffer the things to be removed until his rent was paid, and then went away, and in the course of the day sent a broker who made a formal distress, but in the meantime the stranger had removed his property off" the demised premises, it was held that the distress was commenced by the landlord's entr)^ and declaration, and that the landlord was justified in retaking the goods at the place to which they had been removed, (c) So where the landlord's agent entered upon the demised premises in the absence of the tenant, and told the servants of the latter that he was come to distrain for rent, and walked round the premises, took an inventory, and left his inven- tory at the dwelling-house, with a notice of distress addressed to the tenant, informing him that he had distrained the goods men- tioned in the inventory for rent due to his landlord, it was held that the distress was completed and accomplished by these acts of the agent, and that the subsequent departure of the latter, (c) Thornton iJ.Adams, 5 M. & S. 38. (c) Wood v. Nnnn, 2 M. & P. 30; 5 {d) Horsefall v. Davy, 1 Stark. 169; Bing. 10; Cramer v. Mott, L. R. 5 Q. B. Bromley v. Holden, M. & M. 175; Bach 357. V. Meats, 5 M. & S. 200. 486 CHAP. I.] DISTRESS FOR RENT. * 325 without leaving any one in possession of the things distrained, was uot an abandonment of the distress. (/) And where the agent of the lessor went into a field forming part of the demised premises, where the tenant's cattle were grazing, and, * placing his hand upon one of the beasts, declared that [ * 325 ] he distrained the whole of them for the rent then due, it was held that this was an actual levying of a distress on all the cattle in that particular enclosure. (. Lamont, Car. & M. 96. to payments under the Metropolis Man- (p) Whitehead v. Taylor, 10 Ad. & agement Amendment Act, 1862, 25 & E. 210. 26 Vict. c. 102, sect 96, see Ryan v. (q) Stedman v. Bates, 1 Salk. 389. Thompson, L. R. 3 C. P. 144. (r) Litt. sects. 314-317 ; Philpott v. {t) Davies v. Staoey, 12 Ad. & E. Dobbinsoii, 3 M. & P. 320. 511. (s) Jones V. Morris, 3 Exch. 746. As 502 CHAP. I.] DISTRESS FOE KENT. * 838 cannot, under this plea, contest the defendant's right to the rent. (?<) Of the Plea of Not Guilty " by Statute " in Actions of Trespass or upon the Case for an Unlawful Distress. — By the 11 Geo. II. c. 19, sect. 21, it is enacted that in all actions of trespass or upon the case against persons entitled to rents or services, their bai- liffs or other persons, relating to any entry upon premises charge- able with such rents or services, or to any distress or seizure thereupon, it shall be lawful for the defendants to plead the general issue and give the special matter in evidence, inserting in the margin of the plea the words " by statute." (x) Under the plea of not guilty " by statute," therefore, the defendant may give in evidence that he entered the plaintiff's house under a warrant of distress for rent, and was forcibly turned out of pos- session, and that he thereupon re-entered and broke open the door of the house, in order to seize the plaintiff's goods. Every- thing which he might lawfully do in order to make the distress is admissible in evidence under this plea, (y) The plea puts in issue not only the matter of justification, but the tenancy and ownership of the goods. (?) Plea of a Recovery of the Goods in an Action of Replevin. — A plea by the defendant, setting forth that the plaintiff com- menced and prosecuted an action against the defendant in the county court of the district within which the distress was taken, and obtained the judgment of the court for the return of the goods, and has recovered his goods, and damages for the taking and detaining them, is a good plea in bar to an action for an excessive distress, as it shows that the plaintiff has already had his remedy, (a) So where the defendant's broker appeared upon the plaintiff's premises and said, " Unless you pay me £21 for rent, and three guineas for expenses, I shall take your goods," and the plaintiff paid the money, it was held that it did not lie in the defend- (tt) Wightman, J., Wheeler j). Brans- (y) Eagleton v. Gutteridge, 11 M. & combe, 5 Q. B. 379. "W. 469. (x) Keg. Gen. Hil. Term, 16 Vict. (s) Williams v. Jones, 11 Ad. & E. R. 21; 1 Ell. & Bl. App. Ixxxiii.; Jud. 643. Act. Or. E. 16. (a) Phillips v. Berryman, 2 Doug. 288. 503 * 339 THE CONTRACT OF LETTING. [BOOK II. ant's mouth, after receiving the money, to say there was no distress, (b) Proof of Excessive Distress. — It is not, as we have seen, for every trifling excess that an action is maintainable for an exces- sive distress. It must be disproportionate to some considerable extent (ante, p. * 326), and must be productive of actual loss or damage to the plaintiff, (c) [*339] * If the ground of action is that the defendant dis- trained for more rent than was really due, the plaintiff must prove that he tendered to the defendant the sum really due, with enough to cover the lawful charges of the distress ; (rf) or that the defendant sold the things distrained, and realized by the sale of them more than was sufficient to satisfy the rent really due, with the costs of the distress, (e) A di-stress may, as we have seen, be excessive, although the goods when sold may realize less than the rent and expenses. (/) Proof of Material Averments in the Declaration. — The State- ment in a declaration for an unlawful distress of the name of the person to whom the rent distrained for is due, is material, and must be proved as laid. ([/) But it is not necessary to prove the precise amount of rent alleged in the declaration to be due. (h) Proof of ^A^aiver of Right of Action. — A right of action for an unlawful or excessive distress, once vested, can only be de- stroyed by a release under seal, or by the acceptance and receipt of something in satisfaction of the wrong done. A tenant, therefore, does not waive his right of action for an exces- sive distress, though he afterward enters into a written agree- ment with his landlord respecting the sale of the effects seized, (i) (b) Hutchins V. Scott, 2 M. & W. (/) Smith v. Ashforth, ayite, p. 811. * 327. (c) Eodgers V. Parker, 18 C. B. 112; ((/) Ireland v. Johnson, 1 B. N. C. 25 L. J. C. P. 220; Lucas v. Tarleton, 3 166. H. & N. 120; 27 Law. I. Exch. 246; Pis- (h) Gwinnett v. PliiUiiis, 3 T. R. gott V. Bivtles, 1 M. & W. 450. 643; Sells v. Hoare, 8 Moore, 454. {(i) Glynn v. Thomas, 11 Exoh. 878; (?) Willoughby v. Backhouse, 2 B. 25 Law ,J. Exch. 125. & C. 821; Baylis v. Usher, 4 M. & P. (e) Tan.'rnlf. Leyland, 16 Q. B. 680; 790; 7 Bing. 153. French v. Phillips, 1 PI. & N. 567. 504 CHAP. I.] DISTRESS FOE RENT. * 340 Proof of Tenancy as between Plaintiff and Defendant, if not admitted upon the record, may be established by parol evidence of the fact, notwithstanding that the tenancy has been created by a lease or agreement in writing not produced, {k) Proof of payment and acceptance of rent will establish the fact of the relationship of landlord and tenant between the person paying and the person receiving the rent, notwithstanding the exist- ence of a written contract of demise between them which is not produced, (l) And " I have no doubt," observes Bayley, J., " that submitting to a distress acknowledges the tenancy. The land- lord after distraining cannot bring an ejectment ; and the occu- pier, if he does not replevy, is, I think, precluded from denying the title of the landlord." (m) But payment of rent under a distress is not a conclusive admission of the title of the dis- trainor. Counter-evidence may be given on the part of the ten- ant to show that the distrainor never had any title, (n) * Proof of payment of rent by a tenant to an agent [*340] of the landlord who has received it on account of the landlord, and paid it over to him, is evidence against the tenant that he holds of such landlord, although the latter was unknown to him, and he supposed at the time he paid the money that the agent I'eceived it on account of another person, (o) But proof of payment of rent to a particular individual claim- ing to be entitled to receive it is only prima facie evi- dence of a tenancy under the claimant, and the presumption of the particular tenancy may be rebutted by proof that the payment was made by mistake or under a false representa- tion, (p) Proof of an attornment by the tenant to a receiver appointed by the Court of Chancery, is proof of a tenancy by estoppel as between the tenant and the receiver; but the attornment does not enure to the benefit of the person subsequently declared by the court to be the owner of the property. (5) (k) Eex V. Hull, 7 B. & C. 611; 1 (») Knight «. Cox, 18 C. B. 645. M. & Ry. 448. (o) Hitchlngs v. Thompson, 5 Exch. (?) Doe W.Morris. 12 East, 237, 239, n. 54. (m) Panton v. Jones, 3 Campb. 372; {p) Fenner v. Duplock, 9 Moore, 40. Cooper V. Blandy, 4 M. & Sc. 569; 1 B. (?) Evans v. Matthias, 7 Ell. & Bl. N. C. 45. 690; 26 Law J. Q. B. 309. 505 *341 THE CONTRACT OF LETTING. [BOOK II. Proof of the Nature and Terms of a Tenancy will best be effected by production of the written demi,se, where the tenant holds under a lease or agreement in writing. If the contract is in the hands of the defendant, the plaintiff who desires to prove the amount of the rent, the time at which, or the circum- stances under which, it became due, should give notice to the defendant to produce it at the trial, in order to let in secondary evidence of its contents, (r) The old rule of law, that the terms of a tenancy or the amount of the rent can be proved only by the production of the writing when the tenant holds under a written contract of demise, does not exclude evidence of admis- sions and acknowledgments of those terms made by a defendant holding under a lease in writing not produced. It has been held that whatever a person says, or his acts amounting to admissions, are evidence against himself, although they relate to the contents of some deed or writing, and go to prove the nature and contents of a written instrument not produced, (s) Where, therefore, a defendant held lands under a written demise, it was held that the defendant's verbal declarations of the existence of the tenancy, and of the amount of the rent paid by him to the plaintiff, were admissible in evidence against him, without the production of the writing under which he held, (f) Where on the letting of lauds the terms of the demise were read from a printed paper by the landlord's agent, [*341] and the tenant* entered and occupied, and paid rent, it was held that the agent might gi\'e oral evidence of the terms, using the printed memorandum to refresh his mem- ory. («) Damages Recoverable — Double Value. — By 2 Wm. & M. sess. 1, c. 5, sect. 5, it is enacted that if any distress and sale be made by virtue and under color of that act for rent pretended to be arrear and due, where no rent is arrear or due to the per- son distraining, the owner of the goods distrained and sold may, by action of trespass or upon the case against the person dis- (r) Roscoe'sNisiPriusEvidence, p. 8. {t} Howard v. Smith, 3 M. & Gr. (s) Sktterie v. Pooley, 6 M. & W. 254; 3 Sc. N. E. 574. 668; Boulter v. Peplow, 9 C. B. 493; (u) Bolton (Lord) v. Tomlin, 5 Ad, 19 Law J. C. P. 193; Earle v. Picken, & E. 863. 5 C. & P. 542. 506 CHAP. I.] DISTRESS FOE KENT. * 342 training, recover double the value of the chattels so distrained and sold, together with full costs of suit. When an action is brought upon this statute for the seizure and sale of goods for rent pretended to be in arrear and due, when in truth no rent is in arrear or due to the person distraining, and the plaintiff claims double the value of the goods distrained, the jury should be directed, if they find for the plaintiff, to ascertain in the first place the actual value of the goods, and then to give dam- ages to the plaintiff to the amount of double the value. If the jury assess the damages generally at a certain sum, and it turns out that they have assessed only the actual value or the single damage, the mistake cannot be rectified, and judgment cannot be entered up for the double or treble value. But if they expressly find and assess only the actual value, the plaintiff may apply to the court to have judgment entered up for double value, accord- ing to the statute, {x) Whenever the landlord has distrained without any right or authority to distrain, there is a trespass upon, and injury to, the realty, independently of the trespass in regard of the seizure of the chattels, and the tenant is entitled to recover substantial damages for the disturbance of the peaceful possession of his house, as well as for the unlawful seizure of the goods. Th.e Damages recoverable -where the Entry upon the Premises was effected in an Unlawful Manner, aud the parties had no rigllt to touch the goods after they had entered, by reason of the tres- pass in entering, are the same as would be recoverable from a stranger who bad broken and entered the house without any color of authority ; and it does not lie in the defendant's mouth to say, in mitigation of damages, that he had sold the goods, and applied the proceeds of the sale in satisfaction and dis- charge of the rent, (y) Where a distress is wrongful, the party distrained upon has a right to be replaced in the situation in which he was before the seizure ; for " parties are not to extort even what is justly due by the * improper [*342] execution of a warrant." If goods, therefore, wrong- fully distrained have been sold, or money has been paid to (x) Masters v. Farris, 1 C. B. 716; (j/) Attack i). Bramwell, 32 Law J. Add. on Torts {5th ed. by Cave), p. 75, Q. B. 146. Double and Tr&ble Damages. 507 *342 THE CONTRACT OF LETTING. [BOOK II. procure the liberation of goods distrained, the value of the goods in the one case and the money paid in the otlier will be recoverable, as well as any special damage that may have been sustained ; and the landlord cannot appropriate the money he has received by trespass and wrong in jjayment of the rent due to him. (z) Recovery of Special Damage. — We have already seen that by the express terms of the 11 Geo. II. c. 19, sect. 19, the party injured by an unlawful act committed after a lawful distress, is only to recover the amount of damage he has actually sustained. This damage, in the case of a wrongful seizure and sale of grow- ing crops, is the difference between the amount for which the crops would have been sold if the sale had been regular, and what they actually sold for ; and where there is no difference, or it is proved that the crops were sold for more than they were worth, no damages are recoverable, and the defendant is entitled to a verdict, (a) In an action for selling goods distrained for rent without an appraisement, and without complying with the f)rovisions of 2 \Vm. & M., sess. 1, c. 5 {ante, p. * 330), the measure of damages is the real value of the goods sold, minus the rent. The wrong- doers cannot get off by handing over to the plaintiff the mere proceeds of the sale, (h) In an action for an excessive distress, where the excess con- sists wholly in seizing growing crops, the probable produce of which is capable of being estimated at the time of the seizure, the plaintiff is not entitled to recover the full vulue of the crops beyond the amount for which the distress ought to have been levied. " The true measure of damage is simply a compensation for the additional expense of a distress, and of keeping possession of that part of the crops which it was unnecessary to take during the time of possession, and some compensation for the loss of the absolute ownership and power of disposition for the same time ; or, if the tenant has replevied, then a compensation for (z) Attack V. Bramwell, 3 B. & S. Proudlove v. Tremlow, 1 Cr. & M. 520; 32 Law ,T. Q. B. 14(i; Sowell v. 326. Champion, 6 Ad. & E. 407. (h) Knight v. Egerton, 7 Exch. 407; (a) Rodgers v. Parlcer, 18 C. B. 112; Biggins v. Goode, 2 Cr. & ,1. 307; Whit- Lucas V. Taileton, 3 H. & N. 116; worth v. Maden, 2 C. & K. 517. 508 CHAP. I.J THE LETTING OF CHATTELS. * 343 the additional expense and inconvenience of replevying tc a greater amount." (c) Where the plaintiff in his declaration for a wrongful distress claimed damages for the loss of divers lodgers, without naming any, Lord Ellenborough refused to allow him to prove that he had * in fact lost a lodger, because the name of [ * 343 ] the lodger had not been specified in the declaration, (d) If the landlord takes some things that are distrainable and other things which are not, this does not render the distress wrongful ab initio, but the wrong is limited to the seizure of the goods which were not distrainable ; and the tenant is entitled to recover only the actual damage sustained by him from the seizure of those particular chattels. («) In respect of the things not distrainable, the distrainor is a trespasser ab initio, and the full value of them is recoverable. (/) Nominal Damages are recoverable in an action for an excessive distress where no actual damage is proved, (g) SECTION III. THE LETTING OF CHATTELS. Of Bailments for Hire.^ — The term bailment, derived from the French word bail or bailler, to deliver, denotes, in the common law, a delivery or transfer of a chattel from one person to an- other, in order that something may be done with it, either for the ■■ Edwards, Bailments, sects. 325-409,- Story, Bailments, 323-380, sects. 368- 420; Schouler, Pars. Prop. 704-712; U. S. Dig. tit. Bailment, 379-420; 2 Kent, Com. 586. Recent decisions are : Biiford v. Tucker, 44 Ala. 89; Stewart V. Davis, 31 Ark. 58; Chamberlin v. Cobb, 32 Iowa, 161; Field v. Brackett, 56 Me. 121; Eielly v. Eand, 123 Mass. 215; Howe v. Meekin, 115 Mass. 326; Negus V. Simpson, 99 Mass. 388; Buis v. Cook, 60 Mo. 391; Buchanan v. Smith, 10 Hun, 74; Wilcox v. Palmeter, 2 Hun, 517; Austin v: Miller, 74 N. C. 274; GaflF V. O'Neil, 2 Gin. 246; Ray v. Tubbs, 50 Vt. 688. (c) Piggott V. Birtles, 1 M. & W. 451. 28 Law J. Exch. 157; Attack v. Bram- (d) Westwood v. Cowne, 1 Stark, well, ante, p. *342; Edmondson v. Nut- 172. tall, 34 Law J. C. P. 102. (c) Harvey v. Pocock, 11 M. & W. {g) Chandler v. Doulton, 3 H. & C. 740. 553; 34 Law J. Exch. 89. (/) Keen v. Priest, 4 H. & N. 236; 509 * 344 THE CONTRACT OF LETTING. [BOOK II. benefit of the owner, or of the party who receives it as the tem- porary possessor, or for the mutual benefit of both of them, and is applied to contracts for the letting and hiring of chattels, as well as to contracts for the delivery of them to persons for safe custody or to workmen to be worked upon or dealt with in the course of their employment. The term is also equally appli- cable to contracts for the letting and hiring of realty, although it is not used in the common law to denote that class of contracts. In the French law, the term bail a loyer, or bail for hire, an- ciently denoted a contract for the letting and hiring of a house, or farm, or immovable property : but in modern times it has been applied by the French jurists to contracts for the letting and hiring of personalty as well as of realty. In this class of contracts, tlie person who delivers the chattel for the purposes of the contract is called the baillev/r, or bailor, and the party who receives it tlie bailee. [ * 344 ] * If one man bails or delivers a chattel to another to be used for hire upon the e.xpress or implied understand- ing that the chattel is to be put into a serviceable state and made ready for immediate use by the hirer, there is no implied war- ranty or undertaking on the part of the bailor that the chattel is in any particular state or condition, or fit for any particular pur- pose. But if he expressly or impliedly represents it to be fit for immediate use, or to be applicable to any particular purpose, he impliedly warrants the use for which he receives the hire. If a man, for example, lets out the naked hull or the mere fabric of a vessel, upon the terms that the hirer is to man and equip her and get her ready for sea, there is no implied warranty or under- taking on the part of the shipowner that the vessel is in any particular state and condition at the time of the making of the contract. But if he mans and provisions and equips the vessel himself, and holds her out as fit for immediate use, there is an implied promise or undertaking on his part that she is seaworthy and fit for use, and properly found and provided with stores and provisions, seamen and officers, and all things needful to the due prosecution of the voyage, (a) So if a man lets out the mere (-0 Lyon V. Mells, 5 East, 437; Bur- 621; 9 C. P. 390; 41 L. J. C. P. 180; gess V. Wickham, 33 L. J. Q. B. 17; 43 L. J. C. P. 230; Steel v. The State Stanton v. Richardson, L. E. 7 C. P. Steanishij> f'o., 3 Ap. Cas. 72. 610 CHAP. I.] THE LETTING OF CHATTELS. * 345 fabric of a coach or carriage upon the understanding that the hirer is to provide the horses, harness, servants, and equipmeiits, and prepare the vehicle for use, there is no implied warranty or undertaking on his part that the chattel is in any particular state or condition at the time that he parts with the possession of it ; but if he gets it ready for the road, he impliedly warrants the vehicle to be road-worthy and fit for the performance of the journey for which it is known to be required ; and this implied warranty extends to the coachman, horses, and harness, and all the other necessary equipments for the journey. And if a man lets out furniture for immediate use, there is an implied warranty on his part that it is fit for use, and free from all defects incon- sistent with the reasonable and beneficial enjoyment of it. (&) " If he lets out vessels for holding oil or wine, and furnishes to the hirer vessels that are not in good condition, he shall be responsible for the damage that may accrue ; for he who lets out a thing for use ought to know whether it is fit for use, and to warrant the use for which he takes the hire." (c) If he lets out a horse bridled and saddled, and prepared for immediate use by an equestrian, he impliedly warrants the equipments to be road- worthy and fit for use, and the horse itself to be well shod, (f/) and free from such vices and defects as render it dangerous and unfit to ride. * Of the Duties and Responsibilities of the Hirers of [ * 345 ] Chattels. — If a coach-proprietor lets his coach and horses for a journey, and the coach is driven by the coachman, and is under the direction and management of the servants, of the owner, the latter is bound to keep the horses properly shod, and the carriage in good travelling order ; but if the possession thereof is transferred to the hirer, and the carriage is driven and managed by the hirer's servants, this duty then falls upon the hirer, although the owner or letter of the chattel may under certain circumstances be obliged, as we shall presently see, to repay to the hirer the money expended by him in repairs, (e) Whenever a chattel bailed or delivered to a hirer to be used for (J) Sutton V. Temple, 12 M. & W. (d) Pothier (iojjagrcj.No. 54; Blaok- 60. more ■». Brist. & Exeter Ry. Co., 8 Ell. (c) Domat, 1. 1, tit. 4, sects. 3,8; Dig. & Bl. 1051 ; 27 L. J. Q. B. 167. lib. 10, tit. 2, 19, sect. 1. («) Pothier (Louage), No. 117, 129. 511 * 346 THE CONTRACT OF LETTING. [BOOK II. hire has sustained a partial injury through an inherent defect iu the article itself, or by reason of some inevitable accident which threatens its total and immediate destruction, and the effects of such partial injury may be obviated and the chattel preserved for future use by repairs and remedies promptly provided, there is an implied authority from the owner to the hirer to undertake the necessary repairs and apply the remedies, and incur all such expenses as a prudent man would, under the circumstances, incur for the preservation of his own property. In order to establish a claim for the payment of expenses of this description in the Scottish law, it is necessary, observes Mr. Bell, to show in the first place that the occasion of the expense was not ascribable to the hirer; secondly, that the expense was indispensably neces- sary ; and thirdly, that the owner had notice of it as soon as circumstances permitted. (/) Of the Use of Chattels let to hire — Losses from Negligence.' — Every hirer of a chattel is bound to use the thing let in a proper and reasonable manner, to take the same care of it that a prudent and cautious man ordinarily takes of his own property, and to return it to the bailor or owner at the time appointed for its return (or witliin a reasonable period after request, if no such time has been agreed upon), in as good condition as it was in at the time of the bailment, subject only to the deterioration produced by ordinary wear and tear and reasonable use, and by injuries caused by accidents which have happened without any fault or neglect on the part of the hirer. Where the hirer con- tracted to deliver up a barge at the conclusion of the hiring " in good working order, with all her rigging, gear, and implements complete," it was held that this must be construed with reference to the condition of the barge (whicli was an old one) at the com- mencement of the hiring. (A) Losses from Piracy, Robbery, Theft, Disease, and Acoi- [*346] dent. — If the * tiling let to hire perishes, or is destroyed 1 On negligence of hirers, see Edwards, Bailments, sect. 381; Story, Bail- ments, 345; U. S. Dig. tit. Bailment, 29-66; also Frost u Plumb, 40 Conn. 11; Fi.sher^. Kyle, 27 Mich. 454; Wentworth t;. McDuffie, 48 N. H. 402; Collins v. Bennett, 46 N. Y. 490; Feltman v. Gulf Brewery, 42 How. Pr. 488. (/) 1 Bell's Com. 453. (h) Shroder v. Ward, 13 0. B. N. s. 410; 32 L. J. 0. P. 150. 512 CHAP. I.] THE LETTING OF CHATTELS. * 346 by fire, or is stolen without any neglect or want of care on the part of the hirer, the latter will not be responsible for the loss ; (t) but in cases of stealing, a robbery by force must be proved, or if there has been a secret theft, it must be shown by the hirer that he had taken all such precautions as are ordinarily taken by prudent men to protect their own property from depre- dation. If a ship hired for a particular voyage, and placed in the possession and under the control of the hirer, be captured by pirates or be lost in a storm in the ordinarj^ course of the voyage, the owner must bear the loss; but if the hirer has deviated from the ordinary course and sailed unnecessarily through dan- gerous channels or into seas infested with pirates, and needlessly encountered risks not contemplated by the owner at the time of the hiring, and which would probably not have been run by him except for a greatly increased rate of remuneration, the hirer is liable for the loss. An ow"ner of a chattel which is out on hire for an unexpired term may maintain an action against a third person for a per- manent injury thereto. (Jc) Determination of the Bailment. — If chattels have been bailed or let to hire for a certain term, and the bailee does an act which is equivalent to the destruction of the chattels, or which is entirely inconsistent with the terms of the bailment ; if he sells, or attempts to sell, the chattels, or to dispose of them in such a way as to put it out of his power to return them ; the act operates like a disclaimer of tenancy (ante, p. *257), the bailment is at an end, and the possessory title reverts to the bailor, and entitles him to maintain an action for the value of the chattels, (l) Loans of Money to be used for Hire. — The lending of money for hire is ordinarily denominated a loan at interest, as dis- tinguished from a commodatum, or gratuitous loan, where tlie sum advanced only is paid back without any interest or fruits of increase. A loan of money to be used for hire is a loan for use and consumption, the identical thing lent not being intended {%) Williams^. Lloyd.W. Jones, 179; P. 220; and see Lancashire Wagon Co. Taylor v. Caldwell, 3 B. & S. 836; 32 v. Fitzhugh, 6H. &N. 502; SOL. J. Ex. L. J. Q. B. 164. 231. (/fc) Mears v. London & South- We.st. (I) Fenn v. Bittlestone, 7 Exch. 169; Ry. Co., 11 C. B. N. s. 850; 31 L. J. C. 21 L. J. Ex. 41. VOL. I. 33 513 * 347 THE CONTRACT OF LETTING. [BOOK U. to be returned, but its equivalent in value and kind. The abso- lute property, therefore, in the subject-matter of the loan passes, together with the transfer of the possession, to the hirer or bor- rower; and the latter becomes indebted to the lender in an equivalent in value and amount, with interest, which must be paid and rendered to the latter at the time agreed upon, or within a reasonable period after demand made, in case no time [*347] *for its return has been limited. The liability of the hirer or borrower, consequently, to repay the equivalent amount is not discharged by the loss of the money from robbery, lire, or inevitable accident. Of Commodatum and Mutuum, or Gratuitous Loan.^ — If the bailee is to have the use and enjoyment of the subject-matter of the bailment for his own benefit and advantage, without payment of hire or reward to the bailor, then the bailment becomes a gratuitous loan. There are in the civil law two kinds of gra- tuitous loans, the one called a mutuum, which is a loan for use and consumption, the thing being bailed to be consumed, and an equivalent in kind subsequently I'eturned ; and the other a com- modatum, which is a loan of a specific chattel to be used by the bailee and returned in individuo. In the loan by way of mu- tuum the bailor is called the creditor, hj reason of the credit given by him to the promise of the bailee, and the latter the debtor, because he owes an equivalent to be paid back, (m) In the loan by way of commodatum, the parties are known in law by the ordinary appellation of borrower and lender. " The Latin language," observes Gibbon, " very happily expresses the funda- mental differences between tlie commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had 1 See Edwards, Bailments, c. iv.; Story, Bailments (9tli ed.), 202, 252; U. S. Dig. tit. Bailment, sects, 133-164; and the following recent cases on the rights of a gratuitous bailee: Eldridge v. Hill, 97 U. S. 92; Hagebiish v. Kagland, 78 111. 40; Francis v. Shrader, 67 111. 272; CuUen v. Lord, 39 Iowa, 302; Beller v. Sohultz, 44 Mich. 529; Dale v. Brinckel-hcff, 7 Daly, 45; Lain v. Gaither, 72 N. C. 234; Rankin v. Craft, 1 Heisk. 711; Danville Bank v. Waddill, 31 Gratt. 469; Nuddu. Montanye, 38 Wis, 511. (m) Dig. lib. 50, tit. 16, lex 11; lib. 12, tit, 1, lex 2, sects. 1, 3. 514 CHAP. I.] THE LETTING OF CHATTELS. * 348 been accommodated for the temporary supply of his wants ; in the hitter, it was destined for his use and consumption, and he discharged this mutual engagement by substituting the same specific value according to a just estimation of number, of weight, and of measure." (n) If corn or potatoes, wine or brandy, coals or oil, be borrowed, they are borrowed to be consumed, the corn being eaten, the wine drunk, and the coals and oil burned and consumed. A loan of this description, therefore, is necessarily a mutuum ; for the identical thing lent cannot be returned, but an equivalent in kind must be rendered back. If money is lent to be used, the money is necessarily mixed with other coin of a similar denom- ination; it passes into other hands; its identity and individuality are destroyed ; and the specific pieces of coin cannot be rendered back. A loan of money, therefore, is a mutuum, the borrower being bound to restore not the identical money lent, but an equivalent in the shape of money of the same denomination and value, (o) But if a horse or a book be lent for use, the identity and individuality of the chattel are not destroyed or in any way affected by the use ; the same *horse and the [*348] same book remain, though the one may have been ridden and the other read ; the loan, therefore, is a commodatum, and the borrower does not fulfil his engagement by rendering an equivalent in the sliape of a different horse or a different book of equal value, but is bound to return the identical thing lent, {p) It is of the very essence of a commodatum that the subject- matter of the bailment be granted to be used free of reward ; for if anything be paid for the use of the chattel, the contract is a contract of letting and hiring, and belongs to the class LOCATIO EEL (q) Liabilities of the Borrovrer — Of the Care to be taken of Things borrcwed — Negligence and Misconduct of the Borrower. — In a bailment by way of mutuum, the chattel bailed becomes the ()i) Gibbon's Roman] Empire, c. 44, meo tuum fiat." — Itist. lib. 3, tit. 15; 3, 2. ' Dig. lib. 13, tit. 6, 1. 3, sect. 6. (o) " Et, quoniam nobis non eeedem (p) Doct. and Stud. Dial. 2, c. 38. res, sedallieejusdem naturae etqualltatis (?) Inst. lib. 3, tit. 15, sect. 2; Dig. redduntur, inde etiam mutuum appella- lib. 13, tit. 6. tum est, quia ita a me tibi datur, ut ex 515 * 349 THE CONTRACT OF LETTING. [BOOK II. absolute property of the bailee to do what he pleases with it, and use it in any way he thinks fit ; (r) hut in a bailment by way of comviodatum, the temporary right of possession and user only are transferred, the right of jiroperty remaining in the lender ; (s) and the borrower, consequently, is obliged to render back the identical thing lent in as good a condition as it was in when borrowed, stibject only to the deterioration resulting from inher- ent defects or produced by ordinary wear and tear and the reasonable use of it for the purpose for which it was known to be required, {t) " If I lend a piece of plate, and covenant by deed that the party to whom it is lent shall have the use of it, and the plate be worn out by ordinary use and witliout any fault, I shall have no remedy for the loss, (ii) But the borrower is bound," observes Holt, C. J., "to the strictest care and dili- gence to keep the goods so as to restore them back again to the lender, because the bailee has a benefit by the use of them, so that if the bailee be guilty of the least neglect, lie will be answerable ; as if a man should lend another a horse to go west- ward, and the bailee go northward, if any accident happen to the horse on the northern journey, the bailee will be chargeable, because he has made use of the horse contrary to the trust he was lent to him under; and it may be, if the horse had been used no otherwise than as he was lent, that accident would not have happened to him." {x) If a horse is lent for the perform- ance of an ordinary journey, and the borrower leaves the high- road and travels unnecessarily through by-paths or dangerous roads, and the horse falls and is injured, he will be [ * 349 ] responsible to the lender ; but if * the horse is lent for the purpose of hunting, then the borrower is justified in using it in by-paths and dangerous places, and may expose it to all the ordinary risks of the chase, because those risks are necessarily incident to the use for which the horse was bor- (r) "Appellataestautemmutuidatio (/) Handford v. Palmer, 5 Moore, ab eo, quod de meo tuum fit; et ideo, si 76. non fiat tuum, non nascitur obligatio." (») Hale, C. B., Pomfret v. Kicroft, — Dig. lib. 12, tit. 1, sect. 2, Inst. lib. 1 Saund. 323 b. 3i tit- 15. (x) Cogss V. Bernard, 2 Rayni. 915; (.s) "Nemo enim commodando rem Bract, lib. 3, c. 2, sect. 1, pp. 99, 100. facit ejus cui commodat." — Dig. lib. 9. 516 CHAP. I.] THE LETTING OF CHATTELS. * 349 rowed, and were known to and must have been contemplated by the lender. The owner must stand to all the ordinary risks to which the chattel is naturally liable, but not to risks occasioned by negli- gence or want of ordinary caution on the part of the hirer. If a carriage, for example, let to hire, breaks down on the ordinary public thoroughfare, through the badness of the road, or is injured by a flood or inundation, the owner must bear the loss, although the carriage was driven by the servants and horses of the hirer. But if the hirer had gone out of his way to meet the danger, — if he had travelled by unusual and difficult roads, or crossed a plain subject to floods, when he might have kept the high ground and been safe, — he must make good the loss that has been occasioned thereby. If the owner sends his own pos- tilion or coachman to drive the carriage, the hirer is discharged from all attention to the horses and the risks of the road, and is bound only to take ordinary care of the glasses and inside of the carriage whilst he sits in it, unless he officiously interferes and gives orders, and takes the management and direction of the vehicle into his own hands, (y) If a horse is hired as a saddle- horse, the hirer has no right to use it in a cart or as a beast of burden. If it is hired to go to Eichmond, he has no right to go with it to York ; and if during such misuser a loss occurs, the hirer will be responsible therefor. If a horse hired for a journey is taken ill on the road, and the Viirer calls in a farrier, he will not be responsible if the horse vlies, although the death may have been occasioned by the inju- dicious treatment of the latter. But if the hirer neglects to avail himself of proper advice and assistance, or chooses ignorantly to prescribe himself, and from unskilfulness gives the horse improper medicine, and the horse dies, he is liable to the owner for the loss. (2) It is, of course, the primary duty of the hirer, in the absence of an express stipulation to the contrary, to supply an animal hired by him with suitable food during the time it is intrusted to him for use ; and if a hired horse is exhausted, or becomes ill, and refuses its food, and the hirer, notwithstanding, (y) Jones oil Bailments, 88; Pothier (z) Deane v. Keate, 3 Campb. i. (Louaye), No. 106, 190; Tr. dps Oblig. 1, 543. 517 * 350 THE CONTRACT OF LETTING. [BOOK II. pursues his journey, and by so doing injures or kills the horse, he will be responsible therefor to the owner, (a) [*350] *Tlie gratuitously permitting a person to use a shed, by himself or his servant, for a particular purpose, is a mere revocable license, and has no analogy to a bailment of personal property; and the only duty imposed on such person is that there shall not be negligence in the use of the shed ; and he is not liable for the negligence of his servant not within the scope of his employment. (&) Losses from Ordinary Casualties. — The measure of care and diligence to be exercised for the protection and preservation of a thing bailed by way of eammodatum, whilst it remains in the possession of the borrower, is that amount of care, prudence, and foresight which the most vigilant and careful of men exercise for the preservation and protection of their own property. The foundation for tliis increased liability on the part of the bor- rower, in comparison with the hirer of a chattel, arises from the fact that the lender himself derives no benefit from the con- tract, but in making the bailment performs a gratuitous act of kindness dictated by his confidence in the bailee. The borrower cannot be made responsible for inevitable accidents or casualties which could not have been foreseen, and which no human pru- dence could have guarded against; but be will be answerable for the "least neglect.'' If the borrower of a horse puts the horse into his stable, and the horse is stolen from thence, the borrower will not be answerable for him. But if the borrower or his servant leave the stable-doors open at night, and thieves take the opportunity of that and steal the horse, he will be chargeable for the loss ; for the neglect to lock the door may have encouraged the thieves, and been the occasion of the robbery, (c) Misuser by the Borrower. — "Want of Skill. — If the borrower takes the horse off the highroad against the will of the lender, and rides him into wet and slippery ground, and the horse slips (a) Handfordi>. Palmer, 5 Moore, 79; (e) Coggs v. Bernard, 2 Eaym. 916; 2 B. & B. 3.59; Bray v. Maync, 1 Gow, Dig. lib. 44, tit. 7, 1., sect. 4; Bract, lib. N. P. C. 1. 3, c. 2, p. 99; Inst. lib. 2, tit. 15, sect. (6) Williams v. Jones, 33 L. J. Ex. 2; Doctor and Student, Dial. 2, c. 38. 297. 518 CH.VP. I.] THE LETTING OF CHATTELS. * 351 and is injured, the borrower must make good the loss. It has been said that every lender of a horse for riding, impliedly bar- gains, at the time he makes the loan, for the exercise on the part of the borrower of competent skill in riding and the management of a horse ; (d) but if the bailor chooses, without making any previous inquiry, to entrust a fiery and high-spirited horse to a stranger, of whose skill in horsemanship he knows nothing, he has no right to expect the management and dexterity of an experienced rider. Neither, if he lends valuable property to a notorious drunkard or notoriously wild and reckless character, has he any right to expect the care *and [*351] attention of a very vigilant and painstaking person, (e) By the civil law, the borrower is responsible for all losses and injuries to the thing borrowed occasioned by the private enmity of persons hostile to him, if he has by some fault or misconduct on his part provoked that enmity. (/) The loan of the use, moreover, is strictly personal to the borrower, founded on the confidence reposed in him, and does not, in general, warrant a user by his servants. ((/) Restoration of the Thing borrowed or its Equivalent — • Loss by Robbery, Fire, or Inevitable Accident. — In the case of a loan by way of mutuum, the borrower is bound to I'estore, at the time agreed upon or within a reasonable period after request, an article of the same kind and quality as the one originally lent to him. If by the agreement of the parties an article of a differ- ent character is to be returned, the contract is not a mutuum, but an exchange or sale. Qi) All such things, say the civilians, as are ordinarily regulated by immber, weight, or measure, such as wine, corn, oil, money, brass, silver, or gold, may properly be made the subject of a mutuum, as they can readily be repaid in kind of the same quantity and quality ; but a horse, a grey- hound, a fowling-piece, and all chattels whose value depends upon the intrinsic qualities of each in particular and not upon the general attributes of the genus, cannot properly be made the {d) Jone.s's Bailments, 65; Wilson v. (/) Dig. lib. 19, tit. 2, lex 27, sect. 4. Brett, 11 M. & W. 115. (q) Bringloe v. Morrice, 1 Mod. 210. (e) Pothier, Pret d Usage, c. 2, sect. (h) Dig. lib. 12, tit. 1, 2, 3 ; South 2, art. 2, No. i9; Bract, lib. 3, tit. 2, Australian Insurance Co. v. Eanjell, L. sect. 1, 99 b. K. 3 P. C. 101. 619 * 352 THE CONTRACT OF LETTING. [BOOK II. subject of a mutuum, because, although they are of the same kind, yet each one of the kind differs so rauch from another in quality and attributes, that the creditor cannot be compelled against his will to take one for another. As the right of property in the thing bailed is transferred to the bailee by a bailment by way of mutuum, so also is the risk of loss. If, therefore, the bailee is robbed before he reaches home, or the thing bailed is destroyed by wreck, fire, or inevit- able accident before it can be used, the bailee must, nevertheless, pay the equivalent which he owes to the bailor at the time appointed, (i) " If money, corn, wine, or any other such thing which cannot be re-delivered be borrowed, and it perish, it is at the peril of the borrower. But if a horse or a cart, or such other things as may be used and delivered again, be used according to the purpose for which they were lent, if they perish, he who owns them shall bear the loss, if they perish not through the default of him who borrowed them, or of him who made [*352] a promise at the time of the * delivery to re-deliver them safe again. If they be used in any other manner than according to the lending, in whatever manner they may per- ish, if it be not by default of the owner, he who borrowed them shall be charged with them in law and conscience." (^) When the loan is made by way of COMMODAtum, the borrower must return the specific thing lent within a reasonable period after request, and if he neglects so to do, he is responsible for all accidents that afterward happen to it. He has no right to detain the thing borrowed for any antecedent debt due to him. " The plain reason is that it would be a departure from the tacit obligations of the contract. No intention to give a lien for a debt can be implied from the grant of a mere favor." Neither can the bor- rower set up a right to detain the chattel for the payment of necessary expenses incurred by him in the keeping and pre- serving it. (I) Adverse Claimants — Eviction by Title paramount (post, p. *361). Implied Obligations and Duties of the Lender. — There is an implied undertaking on the part of the lender to the borrower of (i) Inst. lib. 3, tit. 15, sect. 2; Doct. (Jc) Noy's Ma.xims, c. 43. & Stud. Dial. 2, c. 38; Bract. 99, a, b. (I) Turner v. Ford, 16 M. & W. 212. 520 CHAP. I.] THE LETTING OF CHATTELS. * 353 a chattel not to conceal from the borrower secret defects in the chattel known to the lender, which may make the use of the chattel perilous to the borrower. Thus, if one man lends a gun to another, and the lender knows at the time he lends the gun that it is unsafe and dangerous to use, and neglects to disclose the fact to the borrower, he will be responsible in damage to the latter if the gun bursts and injures him. (m) But a gratuitous lender of an article is not liable for injury resulting to the bor- rower or his servant, while using it, from a defect not known to the lender, (n) Loans of Money to one of Several Partners. — Where one of several partners, who was travelling for orders, called upon the plaintiff in the country, and, after transacting business with him on account of the firm, borrowed a sum of money to defray his expenses back to London, Lord Kenyon held that, as the money was lent to the partner while employed on the partnersliip busi- ness, the partnership was responsible for the payment of the debt, (o) But if the partner professes to borrow money for the firm, and misapplies it, and there be proof that the plaintiff lent it under circumstances of negligence, and out of the ordinary course of business, he cannot recover the amount from the other partners, (p) And if the creditor lending the money advances it at *the request of one of the partners, for [*353] the known private purposes and private accommodation of the latter, and not for the trading purposes of tlie co-partner- ship, such creditor cannot make the firm responsible for the re- payment of the money, {q) If money is lent on the individual security and credit of one partner alone, the firm at large cannot be charged with the re-payment of it, although it may in fact be subsequently applied to the use of the partnership. Thus, where one partner was in the habit of drawing bills in his own name, and getting them discounted by the plaintiff, and using the pro- ceeds of such bills in the business of the firm, and applying them to the general purposes of the partnership, it was held (m) Blakemore v, Brist. & Ex. R3'. (0) Eothwell v. Humphreys, 1 Esp. Co., 8 Ell. & BL 1051; 27 L. J. Q. B. 405. 167. (p) Loyd v. Freshfield, 9 D. & E. 19. (n) MacCarthy v. Young, 6 H. & N. (?) Bishop v. Countess of Jersey, 23 329; 37 L. J. Ex. 227. L. J. Ch. 483. 521 *354 THE CONTRACT OF LETTING. [BOOK II. that the plaintiff could not treat the money advanced by way of discount on the bills accepted by the partner in his own name only as a loan to the firm, (r) But where a member of a part- nership was in the habit of drawing bills in his own name upon the firm, and getting them discounted, and applying the proceeds to the general purposes of the partnership, and the firm regularly accepted and paid the bills so drawn until it became bankrupt, it was held that the members of the firm must be taken to have given their co-partner authority to raise money for the use of the firm upon the bills in question, and that the money advanced by way of discount upon them might be treated as a loan to the partnership. (,s) There is no implication of law from the mere existence of a trade partnership, that one partner has autliority to bind the firm by opening a banking account on its behalf in his own name, (t) Loans to Registered Companies. — There is nothing illegal in a registered company commencing business, and proceeding to raise money in the exercise of their borrowing powers, before the whole of the nominal capital has been subscribed, (m) If the directors of a registered joint-stock company are empowered to borrow money, the power to be exercised in accordance with cer- tain prescribed formalities, and the directors borrow money with- out complying with the formalities, this is a matter between them and the shareholders, and does not deprive the lender of his rights against the company, (x) for he has a right to presume that the formalities have been gone through ; but if they have no such powers the lender should have informed him- [*35-4] self of the fact, and he cannot * recover from the com- pany, (y) Although the managers of the company are raising money for purposes unauthorized by the deed of settle- ment or articles of association, yet, if the shareholders, with full knowledge of these transactions, take no steps to ascertain (r) Emly v. Lye, 15 East, 11; Smith («) M'Dougall v. Jereey Imp. Hotel V. Craven, 1 Ci'. & J. 500; Bevan v. Co. (Limited), 34 L. J. Cli. 28. Lewis, 1 Sim. 376. (x) Agar v. AtlieiiiEum Assur. Co., 3 (s) Denton v. Rodie, 3 Campb. 493; C. B. N. s. 753; Royal British Bank ■». Ex parte Bolitho, Buck, 100. Turquand, 6 Ell. & BL 332; Fountaine {t) Alliance Bank v. Kearsley, L. R. v. Carmarthen Ry., L. R. 5 Eq. 316. 6 C. P. 433; 40 L. J. C. P. 249. (y) Irvine v. Union Bank of Austra- lia, 2 Ap. Cas. 366. 522 CHAP. I.] THE LETTING OF CHATTELS. * 354 whether the capital lias been properly increased or not, but reap the benefit derived from the increase, they cannot be afterward heard to say that the money was not advanced for the general use and purposes of the partnership, (z) And whenever money has been borrowed by directors and has been expended in fur- therance of tlie general purposes of the company, and the share- holders have had the benefit of the loan, they will not, in general, be allowed to repudiate the transaction on the ground that the directors had no power to borrow. They cannot keep the money and repudiate the agency by which it was obtained. («) Deben- tures issued by a company under a general power of borrowing, in part discharge of existing debts, are valid, (b) Damages in Actions for not replacing Stock.^ — In an action for not replacing stock lent on a given day, the measure of damages is the value of the stock in the market on the day on which it ought to have been replaced, or at the time of trial, at the option of the plaintiff, (c) Where, however, a stock mortgage was made for a -term of years for securing the re-transfer of stock at the end of the term, and payment iu the meantime of interest calculated on the proceeds of the stock sold to raise the loan, and, the mortgage having been allowed to run after the end of the term, the stock fell in price, it was held that the mort- gagee was not entitled to the market value of the stock at the end of the term, but that the mortgagor could redeem on repla- cing the specific amount of stock originally sold, (d) If dividends are to be paid in the intermediate time, interest may be given upon the value of the capital stock, (e) 1 See Dos Passes, Stockbroker and Stock-Exchanges, c. xi. ; Capron v. Thompson, 85 N. Y. 418. {z) Ee Magdalena St. Nav. Co., 29 (c) Shepherd ■«. Johnson, 2 East, 211; L. J. Ch. 667. M'Arthnr v. Ld. Seaforth, 2 Taunt. 257; (a) Elect. Tel. Co., in re, 30 Beav. Downes ■». Back, 1 Stark. 318; Owen d. 225; Troup, in re, 29 Beav. 353. Eouth, 14 0. B. 327. (b) Inns of Court Hotel Co., in re, {d) Blyth v. Carpenter, L. R. 2 Eq. L. R. e Eq. 82. And as to borrowing 501 ; 35 L. J. Ch. 823. money on debentures, see post, p. *823. (c) Dwyer v. Gurry, 7 Taunt. 14. 523 *355 CONTKACTS FOK SERVICES. [BOOK II. [*355] *CHAPTER II. CONTRACTS FOR SERVICES. SECTION I. WORK AND LABOR. Deposit or Simple Bailment,^ styled by the Eoman lawyers depositum, may be defined to be a delivery or bailment of goods in trust to be kept for the bailor and re-delivered on demand, (a) 1 On the law of deposits aside from banking, see Sdiouler, Bailments, Part II., p. 28; Story, Bailments, sects. -41-136; Edwards, Bailments, u. 2, sects. 10-73; U. S. Dig. tit. Bailment, sects. 76-113; article by F. R. Jli'chem on Rights and duties of a Bailee toward Rival Claimants of the Goods, 11 Cent. L. J. 466. Recent cases are ; Depositary is not liable where he has been robbed of the deposit without his fault (Danville Bank v. "Waddill, 31 Gratt. 469); or where it ias been destroyed by war (McCrauie v. Wood, 24 La. Ann. 406). A barber who keeps a "coat-room," and a boy in attendance to receive and give " checks " for apparel of customers, is not liable for loss of an overcoat of a lustomer which the owner, knowing but disregarding the regulation, hung upon • vpeg near the door, whence it was stolen. Trowbridge v. Sehriever, 5 Daly, 11. No right of action accrues against a depositary before a demand and refusal to (•etum the deposit, unless there has been a wrongful conversion. McLain v. Huffman, 30 Ark. 428. A pledgee from the depositary, though he takes in good faith, acquires no title vigainst the owner. Gottlieb v. Hartman, 3 Col. T. 53; and see Branson v. Heckler, 22 Kan. 610; Small i). Robinson, 69 Me. 425. On a general deposit of money, depositary is liable for the sum, although stolen from him without his negligence. Shoemaker v. Hinze, 53 Wis. 116. Otherwise as to special deposit. Schermer v. Neurath, 54 Md. 491. As to lights of the parties when the depositor unreasonably neglects to resume possession, see Wright u. Paine, 62 Ala. 45; Berard v. Boagni, 30 La. Ann. Part II., 1125; Dale v. Brinckerhoff, 7 Daly, 45. And on other branches of the subject, see Archer v. Walker, 38 lud. 472; McGinn v. Butler, 31 Iowa, 160; Beyris v. Sporr, 22 La. Ann. 16; Britton v. Aymar, 23 La. Ann. 63; Hobson v. Woolfolk, ib. 384; Robinson v. Larrabee, 63 Jle. 116; Murray v. Stanton, 99 Mass. 345; Bates v. Stausell, 19 Mich. 91; Rand i). State Nat. Bank, 77 N. C. 152; Samuels v. McDonald, 11 Abb. Pr. N. s. 344; 42 How. Pr. 300; Moulton v. Phil- lips, 10 R. I. 218; Tancil v. Seaton, 28 Gratt. 601. (a) Dig. lib. 16, tit. 3, 1, sects. 45, 46. 524 CHAP. Il] WORK AND LABOR. * 356 It is of the very essence of a deposit that it he gratuitous ; for if anything is to be paid for the care and custody of the article, it immediately becomes a contract for the letting and hiring of labor and services and care to be employed upon the chattel, and belongs to the class locatio operis et cusTODiiE. Where shares were deposited with bankers by a customer under sucli circumstances as would have entitled the bankers to a lien upon them for their general banking account, it was held that they were bailees for reward. (6) In the Eoman law the term depositum is applied to the delivery of realty to be kept for the owner as vs^ell as to a de- livery of personalty. Thus when a man during his absence from home committed his house and all that was in it to the keeping of a friend, this was called a deposit by the civilians. In the absence of an express contract between the parties, the nature of the bailment must be determined by the nature of the thing bailed, and upon what is required to be done for its pre- servation and safe keeping. When passive custody in some secure place of deposit alone is required, as in the case of most bailments of inanimate chattels, the bailment is a naked deposit or simple bailment, whilst, if work and labor, services and skill, are necessarily required for its preservation, as in the case of bailments of living animals or * perishable chat- [ * 356 ] tels, then the bailment becomes, as presently mentioned, a mandate. ■What is necessary to constitute a Deposit — Executory and Executed Promises. — To constitute a deposit, the subject-matter of the bailment must be either actually or constructively de- livered to the bailee, or it must be in his possession or under his control at the time he undertakes the charsre of it. A mere promise to take charge of a thing which has never either actually or constructively come into the possession of the promisor can- not constitute a deposit. But a delivery to the servant of the promisor, or to a person whom he has appointed to receive the chattel, and who has consented to hold it on his behalf, or any acts on the part of the promisor manifesting a clear intention to take charge of a thing which is not capable of manual deKvery, (6) Johnston's Claim, L. R. 6 Ch. 212; 40 L. J. Ch. 286. 525 '* 357 CONTRACTS FOR SERVICES. [BOOK II. but which has been placed at his disposal and under his control, will constitute a deposit in contemplation of law. Tims, in the Eoman law, if a man went from home leaving the keys of his house with his neighbor, the bailee of the keys was considered to be the depositar}' of the house. If a creditor holding a pledge receives payment of the debt, but continues to hold the pledge, he becomes a depositary thereof for his former debtor. If a tradesman sells any specific chattel, but neglects to deliver it, he becomes a depositary for the purchaser. But a man can- not be made a depositary without his knowledge and consent; he cannot have the possession of another man's property, with its accompanying duties and responsibilities, forced upon him against his will. Thus if a tradesman anxious to sell his wares and merchandise sends them to my hoiise without any previous communication with me and without having obtained my pre- vious consent, and they are taken in by my servant, in my absence or without my knowledge, I do not by reason thereof become the depositary of the goods, and clothe myself with the care of them, (c) Liabilities of the Depositary — Negligent Keeping — Ordinary- Casualties. — A depositary is only bound to take that care of things accepted by him to keep which a reasonably prudent man takes of his own property of a like description, (d) He will be liable to make compensation to the owner if the goods are stolen, damaged, or lost by reason of gross negligence in the keeping of them ; but he is not responsible for slight neglect or ordinary casualties, (e) " He shall stand charged or not charged, according as default or no default shall be in him." (/) [*357] But if he is guilty *of gross negligence, it is no answer to say that he lost his own goods at the time he lost the goods of the bailor, {g) Thus where a coffee-house keeper took charge of a sum of money, and put it with a larger sum of money of his own into his cash-box, which he left in the public (c) Leth bridge v. Phillips, 2 Stark, ed. 175; Dig. lib. 16, tit. 3, 32; Doniat, 544. lex 1, tit. 7, sects. 3, 4; Dig. lib. 50, tit. (d) Giblin v. McMuUen, L. li. 2 P. 16, 223; Jones v. Lewis, 2 Ves. Sen. 240; C. 317; 38 L. J. P. C. 25. Taylor d. Caldwell, ante, p. * 295. (e) Cogga V. Bernard, 2 Raym. 913; (/) Doct. & Stud. c. 38. Lane v. Cotton, 1 ib. 655; Southcote's (g) Doorman v. Jenkins, 2 Ad. & E. ease, 4 Co. 83 b; 1 Smith's L. C. 5th 258. 526 CHAP. IL] ' WORK AND LABOR. * S.'.V tap-room of his coffee-house, from whence it wa.g stolen, it was held that the circumstance of his having lost his own money together with the deposit would not exculpate him from the charge of gross negligence. (Ji) Where a livery-stable keeper undertakes for reward to receive a carriage and lodge it in a coach-house, he is bound to take reasonable care that the build- ing in which it is placed is in a proper state, so that the carriage may be reasonably safe in it; but there is no implied warranty on his part that the building is absolutely safe, and the fact that the building has been erected for him on his own ground makes no difference in his liability, (i) If a man takes charge of money, and leaves it upon a shelf or in an open drawer in a place of public resort, when he might have placed it under lock and key, this is a want of care inconsistent with good faith, and amounts, consequently, to gross negligence. If a package or a box, sealed or locked, be deposited, and the depositary is not made acquainted with the contents, he is bound only to take that care of the article which its general appearance seems to require ; and in case it should be lost or destroyed through gross neglect, he will only be liable to the extent of the apparent value of the article, without reference to the contents. But if he is made acquainted with the contents, — if he is told that the box contains gold or jewels, glass or china, of great value, — he is then bound to exercise a degree of care proportioned to the proper keeping of such articles ; and if he then exposes the box in unsafe places or subjects it to im- proper treatment, and the contents are damaged or destroyed, he must make compensation to the owner to the full extent of the injury sustained. (Jc) Where property is deposited with bankers gratuitously, they are only liable for gross negligence, (kk) An executor stands in the position of a gratuitous bailee in respect of the assets. (J) Passengers' Luggage deposited in Cloak-rooms. — In the ab- sence of any condition limiting their liability, railway companies {?!,) Doorman v. Jenkins, 2 Ad. & E. titiue, 59; Erst. Tnst. B. 3, tit. 1, sect. 258; 4 N. & M. 170. 27, p. 493; Domat, dep. 1, 17; Dig. lib. (i) Searle v. Laverick, L. K. 9 Q. B. 16, lex 1, sect. 41. 122. (kk) Giblin v. M'Mullen, L. E. 2 {k) Bonion's case, Pasch. 8 Edw.II. ; P. C. 317. Mayn. Year Book, 275; Fitz. Abr. De- (I) Job v. Job, 6 Ch. D. 562. 527 * 358 CONTKACTS FOE SERVICES. [BOOK II. are ordinary wareliousemen of luggage deposited with them ; but the companies almost always give a ticket vi^here passengers' luggage is deposited in a cloak-room, and this ticket [* 358] contains the terms of * the contract of bailment. Be- fore the company can rely upon these terms they must be shown to have been present to the mind of the depositor, or that he had reasonable notice of their existence, (m) Carelessness on the Part of the Depositor in selecting a Person notoriously unfit to be trusted. — The law, however, expects a depositor to exercise a reasonable amount of vigilance in the protection of his own interests ; and if he will blindly deposit goods in the hands of a person of weak intellect, or a child, or a minor without experience, or a notoriously idle and careless or drunken fellow, he cannot expect the same care from them as from a prudent and cautious housekeeper. If the goods are injured or lost by the gross negligence of such depositaries, he must bear the consequence of his own rashness and folly, and put up with the loss, (n) Theft by the Servant of the Depositary. — If a servant steps out of the course of his employment to do a wrong, either fraud- ulently or feloniously, towards another, the master is no more answerable than any stranger. Thus if I employ a servant to work in my house, and he carries off the property of a visitor or guest, I am not answerable for the loss. " If one man desire to lodge with another that is no common hostler, and one that is servant to him that he lodgeth with robbeth his chamber, the master shall not be charged with the robbery." (o) If the ser- vant of the depositary negligently leaves the door of a house or warehouse open, and thieves avail themselves of the opportunity thus afforded them to enter the house and steal the deposit, the depositary is not responsible for the theft, (jj) It is laid down by Holt, C. J., that " no master is chargeable with the acts of his (m) Parker v. S. E. Ry., 2 C. P. D. lib. 3, 99 b; Inst. lib. 3, tit. 16, sect. 3; 416 ; Henderson v. Stevenson, L. E. 2 Dig. lib. 16, tit. 3, 32; Holt, C. J., Coggs Sc. Ap. Cas. 470; Pianist). Gt. Western v. Bernard, 2 Enym. 914, 915. Ey., 1 Q. B, D. 515; Burke i). S. E. Ey. (o) Doct. & Stiid. c. 42; Gayford v. Co., 5 C. P. D. 1. Nicliolls, 9 Exch. 702. {n) " Quia, qui negUgenti amico rem {p) Dansey k. Eichardson, 3 Ell. & custodiendam tradit, sibi ipsi et proprise Bl. 169. fatuitati hoc debet imputare." — Bract. 528 CHAP. II.] WORK AND LABOR. * 359 servant, but when he acts in execution of the authority given by his master ; and then the act of the servant is the act of the master." (q) If, therefore, a servant " quits sight of the object for which he is employed, and, without having in view his master's orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him, and his master will not be answerable for such act." (r) It is the custom of bankers to receive and keep for the accommodation of their customers boxes of plate and jewels, wills, deeds, and securities; and as no charge is made for the keeping of these things, they are as we have seen, gratuitous deposits. The bankers, therefore, are not bound to take even ordi- nary care of * them, and if they are stolen by a clerk [*359] or servant employed about the bank, the bankers are not responsible, unless they have knowingly hired or kept in their service a dishonest servant. Where a large quantity of doubloons locked up in a chest was deposited in the vaults of an American bank, and the bankers, who received the chest to keep as depositaries without reward, gave the owner a receipt acknowledging that the chest had been " left at the bank for safe keeping," and a clerk in the bank opened the chest and abstracted 32,000 doubloons and then absconded, having also robbed and defrauded the bank, it was held by the American court that the bankers were not responsible for the theft, (s) Of the Use and Enjoyment by the Depositary of the Subject- Matter of the Deposit. — A depositary has no right to make use of the deposit for his own benefit and advantage ; if he does so, and the thing is lost or injured, or deteriorated in value, through such user, the depositary must make good the loss, (i) If, how- ever, the subject-matter of the bailment is a living animal, such as a hound or a horse, which requires air and exercise, the bailee has an implied authority from the owner to use it to a reasonable extent, and as under an implied engagement to give it proper air C?) MiJdleton u. Fowler, 1 Salk. 479; Giblin ii. McMullen, L. E. 2 P. G. 282. 318; 38 L. J. P. C. 25; ante, p. *356. (r) Lord Eenyon, M'Manus'W. Crick- (t) In tlie Roman law the unauthor- ett, 1 East, 107; Reedie v. Lond. & ized use of the deposit amounted to a North West. Ry. Co., 4 Exeh. 244; gross breach of trust. Inst. lib. 4, tit. 1, Peachey B. Rowland, 13 C. B. 182. sect. 6; Cod. lib. 4, tit. 34, 3; Dig. (s) Foster K. Essex Bank, 17 Massach. lib. 16, tit. 3, 29. VOL. I. 34 529 * 360 CONTKACTS FOK SERVICES. [BOOK II. and exercise. If a sum of money is bailed by one man to an- other under circumstances fairly leading to the presumption that the bailee has authority from the bailor to use it or not as he may think fit, the bailee will stand in the position of a mere deposi- tary, or he will be clothed witii the increased duties and liabili- ties of a borrower, according as he may or may not have thought fit to avail himself of the privilege of user impliedly accorded to him. If he puts the money into a coffer or bag, and refrains from using it, and so preserves its identity, with the intention of restoring it in indinduo to the bailor, he undertakes the duty of a mere depositary, {ii) and is bound only to take the same care of the deposit that he is in the habit of bestowing upon his own money, and will not be responsible for loss by robbery, fire, or any other casualty. But if he were to mix the sum deposited with his own money with the intention of restoring an equiva- lent, and so to destroy the identity and individuality of the sub- ject-matter of the bailment, this would be a user of the money which would at once alter the nature and character of the bail- ment, converting it into a loan for use and consumption, with its increased duties and responsibilities, {x) Where corn [ * 360 ] was deposited by a farmer with *a miller, to be used as part of the miller's current consumable stock, subject to the right of the farmer to claim at any time an equal quantity of wheat of similar quality, or, in lieu thereof, the market price of such quantity, it was held that this was a sale, and not a bail- ment, (y) Transfer of the Deposit to a Stranger — Remedy of the Depositor. — If a depositary commits a breach of trust, and sells or wastes the deposit, the depositor may maintain an action against the purchaser for the recovery of the value of the deposit if the lat- ter neglects to yield it up on demand, {z) unless the thing has been purchased in market overt (Add. on Torts 5th ed. (by Cave), p. 415). If the goods are bailed by A to B, to be kept by the latter, and B bails them to C, who uses and wastes the goods, C (k) Dig. lib. 16, tit. 3, 1, sect. 34. (2) Cooper i'. Winomat, 1 C. B. 672; (r) Dig. lib. 12, tit. 1, 4; Inst. lib. Fenn v. Bittlestone, 7 Exch. ISQ; White 3, tit. 15, sect. 2. v. S^jettigue, 13 M. & W. 603. (;/) South Australian Ins. Co. v. Ran- dall,' L. R. 3 C. P. 101. 530 CHAP. II.] WORK AND LABOR. *361 is liable to an action at the suit of A for the recovery of compen- sation for the damages sustained. («) Where a depositary has wrongfully sold the goods deposited with him, the bailor may sue him immediately for the conversion. If he does not discover the conversion until after the lapse of six years, he is, nevertheless, entitled to sue the depositary for refusing to deliver up the goods, and the statute of limitations will run only from the refusal to deliver on request, and not from the sale, (b) Restoration of the Deposit. — Tlie depositary is bound to deliver up the deposit to the owner on demand, although the latter may be an entire stranger to him. Where a pony-chaise was bailed to a workman to be painted, and the latter deposited it in the bands of a party who refused to deliver it up to the owner unless the latter produced either the person who actually deposited the chaise in his hands or an order from him for its delivery, it was held that the owner was entitled to the possession of his property without doing either the one or the other, (c) The bailee has no better title than the bailor ; and consequently if a person entitled to the property as against the bailor claims it, the bailee must give it up to him. (d) Joint and Several Deposits. — Where goods and chattels are deposited in the hands of a bailee by the concurring will of sev- eral joint owners, one of them has no right to demand them back without the authority of all the joint depositors. If some of them ask the bailee to return the property, and others desire him to keep it, the bailee is not liable to an action at the suit of those who require him to return it. (e) If goods and chattels, deeds or securities * are deposited by two persons [ * 361 ] jointly in the hands of a third to be kept, it is not in the power of one of them alone, without the concurrence of the other, to take them out of the hands of the bailee. (/) If the bailee is bound by liis contract to deliver the goods to the two (ft) 12 Ed. IV. fol. 13, pi. 9; fol. 9, E. 7 Q. B. 594. See, however. Ex parte 111. 5 ; Loeschman v. Machin, 2 Stark. Daries, 19 Ch. D. 86, post, p. * 467. 311. (e) Attwood v. Ernest, 13 C. B. 889; (S) Wilkinson v. Veritj', L. E. 6 C. P. 22 L. J. C. P. 225. 203; 40 L. J. C. P. 141. (/) Maj' v. Harvey, 13 East, 197; (c) Buxton V. Eaughan, 6 C. &P. 674. Thei. Dig. lib. 11, cap. 47; Jones's Bail- (d) Biddle o. Bond, 6 B. & S. 25; ments, 50; Noy's Life, appended to 34 L. J. Q. B. 137; Batut v. Hartley, L. Noy's Maxims, 8th edit. 1821. 531 * 361 CONTRACTS FOE SERVICES. [BOOK II. jointly, his refusal to deliver them on the ddmand of one party alone is not a conversion, nor is his detention from such one party an unlawful detainer. But if an action is brought by sev- eral joint bailors against the bailee for non-delivery of the goods, it is a good defence to the action that the goods have been deliv- ered up to one of them, {g) When the deposit is not a joint de- posit founded on a joint contract, but is made by one of several joint owners, the depositor may sue alone, " as if a charter be made to four, and one of them bails the charter to keep, he alone, without the others, may bring detinue." (h) And wherever seve- ral joint owners allow one of them to deal with their property, and place it in tlie hands of a bailee, the latter is accountable to the owner with whom he deals, (i) Transfers of the Subject-Matter of the Bailment — Adverse Claimants. — When chattels have been bailed, to be holden by the bailee at the disposal of the bailor, a question often arises as to the nature and extent of the liabilities of the bailee to persons who claim to be the owners of the chattels by sale or mortgage from the bailor. If the bailee has received the chattels upon the terms that he is to deliver them to the bailor, or to any person authorized by him to receive them, a bona fide purchaser or mort- gagee who is in possession of a bill of sale or assignment, or mortgage, executed by the bailor, transferring all the bailor's interest in the chattels to such purchaser or mortgagee, may, on p)resenting such bill of sale or mortgage to the bailee, lawfully demand possession of the chattels, and in case of the refusal of the latter to deliver them to him, may maintain an action for their recovery, the bill of sale or mortgage signed by the bailor being an authority or direction to the bailee to deliver up the chattels to the purchaser or mortgagee. Eviction by Title Paramount. — '\^niere tlie plaintiff brought an action against the defendant for a breach of his promise to return a horse sent to him by the plaintiff, and the defence was that S was the owner of the horse and liad forcibly taken it away from (g) Burke v. Bryant, Addison on (/;) Tliel. Dig. lib. 11, cap. 47, sect. Torts, p. 350; Brandon v. Scott, 7 Ell. 8; Broadbent v. Ledward, 11 Ad. & E. & Bl. 237; 26 L. J. Q. B. 163; Watson 211. V. Evans, 1 H. & C. 664; 32 L. J. Ex. (0 Mnrtin, B., AValshe v. Provan, 8 137. Exch. 852. 532 CHAP. II.J WOKK AND LABOK. *362 the defendant, it was held that this was a discharge of the * defendant's promise, it being analogous to an evic- [ * 362 ] tion of a lessee by title paramount, (k) So where a bailor mortgages a chattel bailed, and the mortgagee has a right to demand possession from the bailee, and does demand it, the latter may refuse to give the chattel up to the bailor, (l) Stakes in the Hands of Stakeholders to abide the Event of a Lawful Game. — If money has been deposited in the hands of a stakeholder to abide the event of a lawful game or race, and then to be paid over to the winner, the stakeholder holds the money as agent of the winner, and is bound on demand to pay it over to him. (m) But if the party is not strictly a stakeholder hold- ing money in that character, but receives it as agent for a known principal, he is accountable only to the latter for the money. («) If the deposit has been made by two persons jointly, it cannot, as we have seen, be revoked and the thing deposited be de- manded back by one of them alone. If a valid and binding contract is made between A and B for the performance of some act or duty by B by an appointed day, or within a reasonable time after the making of the contract, and for the payment of money by A to B on the act being done, and the sum to be paid is by the mutual agreement of the parties, deposited by A in the hands of C, to be paid over to B on the performance of his contract, and in default to be returned to A, the deposit cannot be revoked and the money demanded back from the stakeholder by A without the consent of B, (o) unless the transaction is illegal, {p) As soon as the stakeholder has received the deposit, he is bound to hold it to abide the event, and must not pay it over to either party until the condition upon which it was made payable or returnable has been accomplished. Thus where an auctioneer has received a deposit from the purchaser of an estate, (7c) Shelbury v. Scotsford, Yelr. 23; (m) Bamford v. Shuttleworth, 11 Ad. Littledale, J., Wilson v. Anderson, IB. & E. 926; Edgell v. Day, L. K. 1 C. P. & Ad. 4.57; Biddle v. Bond, 34 L. J. 80; 35 L. J. C. P. 7. Q. B. 137; 6 B. & S. 225. See, however, (o) Manyat v. Bi-oderick, 2 M. & W. Ex parts bavies, post, p. * 467. 372; Emery v. Richards, 14 M. & W. (I) European & Australian Royal 728; 15 L. J. Ex. 49. Mail Co. v. Royal Mail Steam Packet (p) Ante, p. *223; Elthamt). Kings- Co., 30 L. J. C. P. 247. man, 1 B. & Aid. 683. (m) Applegarth v. Colley, 10 M. & 533 * 363 CONTRACTS FOE SERVICES. [BOOK II. to be paid over to the vendor if a good title to the property is made out by the latter and in default thereof to be returned to the intended purchaser, the latter has no right to demand back the deposit, and the auctioneer is not justified in returning it, without the consent of the vendor. But if the vendor is not able to establish his title, or the contract is rescinded or aban- doned by the mutual consent of the contracting parties, the auctioneer then holds the deposit for the use and at the dis- posal of the party from whom he received it, and is [ * 363 ] bound * to return it on the request of the latter, {q) So long as the contract between the parties interested in the deposit remains open, and the event is undetermined, the right to the deposit remains in suspension, and each of the par- ties has an equal interest in the due fulfilment of the trust by the stakeholder. Stewards of a horse-race do not stand in the position of arbitrators between the persons who have horses in the race ; and it is not necessary that they should meet together and come to a joint decision as to which horse has won, to enable the winner to recover the stakes, (r) If the deposit has been made to abide the event of a wager, or for the purpose of carrying into effect an unlawful transaction, the depositor may, as we shall see, at any time before the event has happened or the deposit has been paid over, demand it back and maintain an action for its recovery, (s) Powrer of the Depositary to compel Rival Claimants to estab- lish their Title by Interpleader. — If the event, when it does transpire, is not of a decisive character, and both parties set up a title to the deposit, the depositary may compel them to inter- plead, and so establish the right. This may be done when the depositary claims no interest in the deposit, and is not coUuding with either party, {t) A stakeholder may also pay money into court under tlie Trustee llelief Act. (m) (q) Burrough v. Skinner, 5 Burr. 398; Peanson v. Oardon. 2 Euss. & M. 2639; Edwards v. Hodding, 5 Taunt. 606; Tannery. The European Bank, L. 815; Gray v. (iutteridge, 1 M. & E. 614; E. 1 Ex. 261; S5 L. J. Ex. 151; Nelson Duncan v. Cafe, 2 M. & W. 246. v. Baxter, 23 L. J. Ch. 705; 2 H. & M. {r) Parr ■». Winteringham, 1 Ell. & 334; Attenborough v. St. Katherine's EU. 394; 28 L. J. Q. B. 123. Dock, 3 C. P. D. 450, C. A.; 23 & 24 (s) Post, p. *1156; Holmes v. Six- Vict. c. 126, sect. 12. smith, 7 Exch. 802; 21 L. J. Ex. 312. (u) United Kingdom Life Assurance (t) Crawshay v. Thornton, 7 Sim. Co., In re, 34 L. .1. Ch. 554. 534 CHAP. II.] WORK ASD LABOR. * 364 Liabilities of the Depositary when he holds Possession wrong- fully. — If the depo.sitaiy js in default iu neglecting to return the chattel on demand, he is -responsible for the subsequent loss or destruction of the article, and for all injuries that may after- ward happen to it, by whatever means occasioned. He must restore it, moreover, with all its increase and profits. Thus, he who has taken charge of a flock of sheep must restore the wool shorn from their backs and the lambs they have produced, to- gether with the sheep themselves ; and if the profits, produce, and increase are of a perishable nature, such as milk, eggs, and butter, and have been necessarily sold, the produce of the sale must be paid to the depositor. The depositary, however, cannot be called upon to deliver up the accessory without the principal. If the depositor turns out to be a thief and to have stolen the things deposited, and the true owner appears, the depositary must restore them to the latter, (x) * Liabilities resulting from the taking Possession of [*364] Goods by Finding. — A man may clothe himself with the ordinary obligations and liabilities of a depositary by finding and taking possession of the lost property of another as well as by receiving property direct from the hands of the owner. In Xoy's Maxims it is observed (c. 43) : " If one man finds goods of another, and they be hurt or lost by the. negligence of him who found them, he shall be liable to make them good to the owner." So in Doctor and Student it is said : " If one man finds goods of another, and they be after hurt or lost by wilful negli- gence, he shall be charged to the owner. But if they be lost by other casualty, as if they be laid in a house that by chance is burned, or if he deliver them to another to keep that runneth away with them, I think he be discharged." (y) " When a man doth find goods," further observes Lord Coke, " it has been said, and so commonly held, that if he doth dispossess himself of them, by this he shall be discharged; but this is not so, as appears by the 12 Edw. IV. fo. 13. Por he who finds goods is bound to answer for them to him who hath the property; and if he deliver them over to any one, unless it be to the riglit owner, he (x) Domat {Du Depot.), sent. 4, sect. {y] Dial. 2, c. 38; Story, Si, 65. 2; sect. 1, sect. 5; Dig. lib. 16, tit. 3. 535 * 365 CONTRACTS FOR SERVICES. [BOOK II. shall be charged for them ; for at the first it is in his election whether he will take them or not into his custody ; but when he hath them, he ought to keep them safely ; and if he be wise, he will search out the right owner of them, and deliver them to him. An action on the case lieth against him for ill and nesli- gent keeping." (z) So by the civil law, if the finder of a lost article took the thing lost into his possession, he was obliged to take care of it and preserve it for the owner. He was deemed, moreover, to be guilty of a theft if he made no attempt to dis- cover the owner and restore the lost property, or if, knowing the owner, he kept the property without any intention to restore it. («) Liabilities of the Depositor. — The depositor is by the Eoman law bound to reimburse the bailee all extraordinary expenses in- curred by him in the preservation of the thing committed to his keeping ; and such a liability may, under certain circumstances, exist in our own law. The French law, moreover, concedes to the depositar)^ a right to detain the chattel until he has re- ceived payment of such expenses, (b) But no such right exists in the common law ; and no depositary is ever permitted in this country to set up a right of lien upon the chattel for the mere expenses he has incurred in keeping and preserving it. Deposits of Money -with One of Several Partners. — A [*365] receipt of * money by one partner on account of the firm, in the ordinary course of the business of the co- partnership, is the receipt of the co-partnership at large ; and all the partners are individually responsible for the proper applica- tion of the money deposited, (c) If two solicitors in partnership together are in the habit of receiving money to place out on securities, and one of them receives a sum of money to be laid out on security, the other is responsible for the proper applica- tion of the money, although the party receiving it gives his own separate receipt for it, making himself individually accountable for the amount on demand, (d) But it must be proved that the (z) I?:aack v. Clark, 2 Bulst. 312. (c) Dundonald v. Masterman, L. E. (a) Dig. lib. 47, tit. 2, lex 43, sect. 4. 7 Eq. 504; 38 L. J. Ch. 350; St. Aubyn AstorecovCTin<;thehalvesof bank-notes, i7. Smart, L. R. 3 Ch, 646. seeSmithw. Mundy, 29 L. J. Q. B. 172. (rf) Willet v. Chambers, 2 Cowp. (b) Pothier (/'-/jnO. No. 59; {OhlUjn- 814. tions) No. 625; Cod. Civ. art. 1948. 536 CHAP. II.] WORK AND LABOR. * 366 client relied on the joint judgment and joint security of the firm, and that it was part of the ordinary course of business of the firm to receive and hold money until a good mortgage security offered, and then invest it ; for it is no part of the ordinary busi- ness or duties of solicitors to receive and hold money for general purposes of investment, (e) Where one of a firm of solicitors received from a client a sum of money, for which a receipt was given in the name of the firm, stating that part of the money was in payment of certain costs due to the firm, and that the residue was to make arrangements with the client's creditors, and the solicitor misappropriated the money, it was held that the transaction with the client was within the scope of the part- nership business, and that the partners in the firm were jointly and severally liable to laake good the amount. (/) If one of several partners in trade obtains money in the ordinary course of dealing of the co-partnership, but by means of false and frau- dulent representations, and converts the money, when received, to his own use in fraud of his partners, the partnership is never- theless responsible for the moneys so received in the name of the firm ; and an innocent partner may, consequently, be as much bound by such fraudulent acts and transactions as if he himself had personally been a party to them, {g) But if the fraud has not been committed in the course of the partnership dealings, but in the private and separate transactions of the single partner himself with third parties, the innocent partner cannot be made responsible to those who have been defrauded in the course of such transactions. Thus, if a partner who holds money in his hands as a trustee for third parties brings that money into the partnership account, and * employs it in the [*366] business as his own money, the other partners cannot be made responsible for the repayment of the money so employed in the business, unless they knew at the time that the money was trust money, and not the property of their co-partner. (A) (e) Harman v. Johnson, 2 Ell. & Bl. (g) Rappv. Latham, 2 B. & Aid. 795; 61; 22 L. J. Q. B. 297; Plumei- v. Greg- Stone v. Marsh, E. & M. 368; 6 B. & C. ory, L. E. 18 Eq. 621; Phosphate Sew- 551; Keating d. Marsh, 1 Mont. & Ayr. age Co. V. Hartmont, 5 Ch. D. 39i; and 582. see po«<, p. * 379. (h) Ex parte Heaton, Buck, 386; (/) Atkinson v. Macreth, L. R. 2 Smith v. Jameson, 5 T. R. 601. Efi. 570; 35 L. J. Ch. 624. 537 *366 CONTRACTS FOR SEItVICES. [BOOK II. But if money is deposited in the hands of one of several partners of a banking firm at the bank, to be held temporarily by the bank, and subsequently applied in the purchase of some particu- lar security, and the partner absconds with the money, the firm is responsible for the repayment of the amount, although they had given no authority to their partner to receive money for investment, and the transaction, so far as it related to the appli- cation of the money when received, was not in the ordinary course of business, (i) And where the senior partner of a firm of stockbrokers bought transferable bonds for the plaintiff, and kept the bonds for him, and afterward sold them and made away with the money, it was held that the firm was responsible to the plaintiffs for the value of the bonds, although the junior partners were entirely ignorant of the transaction, (k) Deposits of Money with Bankers. ^ — Money deposited in the hands of bankers in the ordinary course of business is money lent to the banker by the depositor, with a superadded obli- gation that it is to be repaid when called for by cheque. If interest is to be paid by the banker, the transaction amounts to a letting and hiring of the money or a loan at interest ; if no interest is to be paid on the deposit, it is a commodatum or gra- tuitous loan ; and in this last case, if the money remains for six years in the banker's hands without any payment by him of any part of the principal, or any acknowledgment by him in writing of the existence of the loan and of the debt, the statute of lim- itations will be a bar to its recovery by action. {I) In ordinary cases of deposits of money with bankers, the transaction amounts to a muhium or loan for use and consumption, it being under- stood that the banker is to have the use of the money in return for his consent to take charge of it. (m) "Money, when paid 1 See Morse, Banks; Ball, Nat. Banks; Thompson k Browne's Nat. Bank Cases; Abb. Dig. Corp. tit. Banks, V. 3; U. S. Dig. tit. Banking, I. 2. Bank liable for loss of depositor's money through embezzlement, fraud, &c., of cashier or other officers. Steckel v. First Nat. Bank, 93 Pa. St. 376; Ziegler v. Same, ib. 393; Kesh v. Same, ib. 397. (i) Thompson v. Bell, 10 Exch. 10; 16 L. ,T. Ex. 210; Howards. Danbnry, 2 23 L. J. Ex. 321. C. B. 806. (k) La Marquise de Ribeyre v. Bar- (in) Alderson, B., Robartsr. Tucker, clay, 23 Beav. 125; 26 L. J. Ch. 747. 16 Q. B. 575; Pott ■v. Clegg, 16 M. & W. (I) Pott V. Clegg, 16 M. & W. 321; 321; 16 L. J. Ex. 210; Sims v. Bond, 2 N. k M. 608. 538 CHAP. II.J WOEK AND LABOR. * 367 into a bank, ceases altogether to be the money of the depositor ; it is then the money of the banker, who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it or ordered to pay it. It is the banker's money ; he deals with it as his own ; he makes what profit he* can of it, which profit he retains to himself, [*367] paying back only the principal sum, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other iJaces." The money, therefore, being his own, he is guilty of no breach of trust in employing it. He is not answerable to the principal if he puts it in jeopardy by engaging in hazardous speculations; but he is, of course, answerable for an equivalent amount to be paid to his customer when de- manded, (n) Deposit of Bills, Notes, and Securities in the Hands of Bankers.^ — But bills deposited in the hands of a banker remain the ' Upon special deposits (or those which require the specific thing to be re- turned) with banks, see Morse, Bank. (2d ed. ) 66-72; Edwards, Bailments, 41-50; Schouler, Bailments, 35-39; Ball, Nat. Banks, 111, 229; Story, Bailments, sect. 88, and 41 note; U. S. Dig. tit. Banking, sects. 46-104. A national bank has the power to receiye and become bound for special deposits. National Bank v. Graham, 100 U. S. 699. Earlier decisions on both sides of the question were ; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Wiley t). First Nat. Bank, 47 Vt. 546; Whitney .V. First Nat. Bank, 50 Vt. 388 ; Marine Bank u. Chandler, 27 111. 525; Turner v. First Nat. Bank, 26 Iowa, 562; Scott ■». National Bank, 72 Pa. St. 471; Lancaster County Nat. Bank v. Smith, 62 Pa. St. 47. Like any other gratuitous bailee, a bank receiving n special deposit without charge is liable only for gross negligence. National Bank v. Graham, 100 U. S. 699; S. C. Browne, Nat. Bank Cas. 64, and see note, ib. 69; First Nat. Bank v. Eex, 89 Pa. St. 308; De Haven v. Kensington Nat. Bank, 81 Pa. St. 95; Scott V. National Bank, 72 Pa. St. 471; Comp v. Carlisle Deposit Bank, 94 Pa. St. 409; Chattahoochee Nat. Bank v. Schley, 58 Ga. 369; Pay v. Bank of Ky., 10 Bush, 344; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Scott v. Crews, 2 S. C. 522; Maury v. Coyle, 34 Md. 235. Its liability where the property is pledged to the bank as collateral security, see Dearbourn i>. Union Nat. Bank, 58 Me. 273; s. c. 61 ib. 369; Jenkins v. Na- tional Village Bank, 58 Me. 275; and see Third Nat. Bank v. Boyd, 44 Md. 47; Fleming v. Northampton Nat. Bank, 62 How. Pr. 177. Where the cashier pledges bonds deposited for safe-keeping, the pledgee in good faith acquires a good title, and a recovery of the bonds through the cashier's {n) Foley v. Hill, 2 H. L. C. 36; ank, p. *346. 539 * 367 CONTRACTS FOR SERVICES. [BOOK II. property of the customer, unless there be a special agreement transferrin" the property in them to the banker, so that upon the death or failure of the banker the customer has a right to the bills so Ion"' as they remain in specie, but the banker has a lien upon them if the customer has overdrawn his account {post, p.* 375). Where a customer was in the habit of depositing bills with his bankers, which bills were indorsed by him, and were entered in the bank books to his credit as bills, not as cash, and after such entry the customer was allowed to draw to the full amount of such bills by cheques, and the bankers became bankrupt, it was held that the customer, who had a cash balance in his favor at the time of the bankruptcy, was entitled to the bills, there being no evidence that he had agreed that, when the bills were deposited, they were to become the prop- erty of the bankers, (o) And where a customer paid a bank- note into the bank after the ordinary hours of business, and the bankers, having previously resolved to stop payment, did not carry the amount of the note to the customer's account, but placed it aside in a separate place of deposit, taking care not to mix it with the general assets of the house, it was held that the note still remained the property of the customer, (p) If bank- notes deposited by a customer turn out to be worthless paper, by reason of the insolvency of the bank which issued the notes, the loss falls upon the customer, if there has been no laches on the part of the banker with whom the notes were deposited. If the banker gives a receipt for the notes as cash, he is not bad faith does not revest the title in the depositor. Ringling v. Kohn, 4 Mo. App. 59. Depreciation in the value of bills or notes constituting a special deposit does not alter the rights of the parties. Dawson v. Real Estate Bank, 5 Ark. 283; Green v. Sizer, 40 Miss. 530; Maynard'u. Newman, 1 Nev. 271; see Foster v. Bank, 21 La. Ann. 338; Kupfer r. Bank of Galena, 34 111. 328; Bank of the .State v. Burton, 27 Ind. 426; Gumbel i). Abrams, 20 La. Ann. 568; Chesapeake Bank V. Swain, 29 Md. 483; Sandford v. Hays, 52 Pa. St. 26; Warner v. Sauk County Bank, 20 Wis. 492. See, further. Smith v. First Nat. Bank, 99 Mass. 605; Griffith v. Zipperwick, 28 Ohio St. 388; Wright v. Paine, 62 Ala. 340; DanvUle Bank v. WaddiU, 31 (;ratt. 469. (o) Thompson v. Giles, 3 D. & R. (p) Sadler v. Belcher, 2 Mood. & Rob. 733; 2 B. & C. 422. 489; ante, p. * 366; post, p. * 369. 540 CHAP. II.J WOKK AND LABOR. * 368 precluded by such receipt from subsequently showing that what he received was not cash, but spurious paper, (q) Receipt of Cheques by Bankers on Account of their Customers. — When a cheque is paid into a bank to be placed to the account of a * customer, the banker is bound to use [*368] due diligence in getting the cheque paid, and must give prompt notice to his customer in case it is not paid ; and if he omits to do either of these things, he makes the cheque his own, and must bear the loss, if loss there be. Where the plaintiff received a cheque drawn upon his own bankers, and took it to their bank, and handed it to a clerk, with directions to place it to his account, and the clerk received the cheque without any observation, and the bankers, finding that the drawer of the cheque had overdrawn his account and was keeping out of the way, gave the plaintiff notice on the following day that the cheque would not be honored by them, and that the amount of it would not be placed to his credit, it was held that the bankers were not precluded, by their having received the cheque without comment in the first instance, from subsequently refusing to credit the plaintiff with the amount ; but that if the plaintiff, at the time he deposited the cheque, had asked the bankers whether they would pay it, he would liave been entitled to an answer, and that the bankers would have been bound by such answer. (?-) It is often impossible to ascertain till the close of the day at the clearing-house what sums of money may be paid in to each par- ticular account, and what are the drafts upon it ; and bankers, therefore, may receive cheques drawn upon them by their cus- tomers, and may reserve to themselves the right of honoring them, or not honoring them, according to the result of the day's transactions at the clearing-house. Where bankers, at the time of receiving a cheque drawn upon them by one customer and presented by another, stated that they were not then in funds, but that they would keep the cheque in the hope of being fur- nished with money to pay it in the course of the day, it was held that they were bound to appropriate the first money they (?) Timmins v. Gibbins, 18 Q. B. (r) Boyd v. Emmerson, 2 Ad. & E. 722; 21 L. J. Q. B. 403. 202. 541 * 368 co>;ti:al;ts for services. [book u. received from their customer to the drawer, iu satisfaction and discharge of such cheque, (s) Of the Duty of Bankers to honor the Drafts of their Custom- ers — Payment of Cheques.^ — It is the duty of the banker to pay the debt due to the customer pursuant to the order, cheque, 1 See Morse, Banks {2d ed.), 249-383; Ball, Nat. Banks, 66; U. S. Dig. tit. Banking, sect. 137. In order that a wriling should be a che(iue, a payee must be indicated. Mcintosh V. Lytle, 26 Minn. 336. After a cheque has passed to a holder in good faith, the drawer has no power to countermand it. Union Nat. Bank v. Oceana Co. Bank, 80 111. 212; AVeinstock V. Bellwood, 12 Bush, 139. A bank, after having paid a cheque from funds of the drawer, cannot at his request rescind its act to the prejudice of those who have in good faith acted upon the credit of the cheque. Albers v. Commercial Bank, 9 ilo. App. 59. "When the drawer of a cheque lias no funds at the time in the bank to meet it, the checiue is due immediately, without presentment and demand, and the statute of limitations begins to run from its date. Brush v. Barrett, 82 N. Y. 400. As to delay in the presentment of a cheque, see Fletcher v. Pierson, 69 Ind. 281 ; Allen V. Kramer, 2 111. App. 205; Cowing v. Altman, 79 N. Y. 167; First Nat. Bank V. Alexander, 84 N. C. 30; Springfield v. Green, 7 Baxt. 801; Schoolfield V. Moon, 9 Heisk. 171; Kinyon v. Stanton, 44 Wis. 479; and compare State v. Bietz, ib. 624. As to what constitutes an acceptance, see National Bank v. Second Nat. Bank, 69 Ind. 479. The drawer's liability is not affected by the fact that when the drawee accepted the cheque all the parties knew that the bank had suspended, and that the drawer had funds therein to an amount greater than that of the cheque. American Emigrant Co. v. Clark, 47 Iowa, 671. The holder of a cheque need not present it after the insolvency of the drawee. Jackson Ins. Co. v. Sturges, 12 Heisk. 339. The drawers of a cheque are not released from liability by the holder's failure to notify them of non-payment, the drawers being found to have no funds in bank at the time of the presentation of the cheque. Shaffer v. Maddox, 9 Neb. 205; see also Henshaw v. Root, 60 Ind. 220. The drawer of a cheque, after demand upon the* drawee for payment, and a re- fusal, is not discharged because of a failure to present the cheque at the clearing- house, in accordance with the mercantile usage, although, had it been so presented, it would have been paid. Kleekamp v. Meyer, 5 Mo. App. 444. To have the effect of an equitable assignment, an order, cheque, or draft must be drawn on n particular specified fund ; and this notwithstanding a receipt on the back of the cheque intended for the signature of the payee. Attorney-General V. Continental Life Tns. Co., 71 N. Y. 325. A post-dated cheque is not invalid. Fraziern. Trow's Printing, &c. Co., 24 Hun, 281. For the limits of the obligation of banks to pay a depositor's cheques and notes drawn payable at bank, see an article, Notes payable at Bank, 12 West. Jur. 523, 17 Alb. L. ,T. 500. See, further, Deener v. Brown, 1 MacArthur, 350; Bristol Knife Co. v. First (s) Kilsby v. Williams, 5 B. & Aid. 819. 542 CHAP. II.] WORK AND LABOR. * 369 or draft of the latter. The customer may order the debt to be paid to himself or anybody else, or he may order it to be carried over or transferred from his own account to the account of any other person he pleases. He may do so by written instrument or verbal direction ; but the banker is entitled to require some written evidence of the order for the transfer, (t) The banker is bound by law to honor the cheques and drafts of his customers, provided they are * presented within [*369] banking hours, and provided he has in his hands sufficient funds for the purpose belonging to the customer ; (u) and if he refuses he is liable to an action by the customer for substantial damages without proof of actual damage ; for it is a discredit to the customer to have his cheque refused payment, (x) Where the plaintiff paid a sum of money to a banker in Lon- don, and directed him to forward the money to certain country bankers to the plaintiff's credit by a particular day, and the London banker received the money and neglected to forward it, it was held that he was responsible for all damages sustained by the plaintiff by reason of his not having the money at the time and place appointed, (y) The acceptance by a customer of a bill of exchange payable at his bankers is tantamount to au order from him to his banker to pay the bill to the person who, according to the law merchant, is capable of giving a good discharge for it, i. e. to a person who becomes the holder by a genuine indorsement, or if the bill is originally payable to bearer, or if there is afterward a genuine indorsement in Nat. Bank, 41 Conn. 421; Cutler v. Reynolds, 64 111. 321; Emery v. Hobson, 63 Me. 32 ; Magee Furnace Co. v. Boston Soapstone Furnace Co., 124 Mass. 409 ; Carr v. National Security Bank, 107 Mass. 45; Senter^. Continental Bank, 7 Mo. App. 532 ; Frankenberg v. First Nat. Bank, 33 Mich. 46 ; Shipsey v. Bowery Nat. Bank, 59 N. Y. 485 ; Briggs v. Central Bank, 61 How. Pr. 250 ; Boyden v. Bank of Cape Fear, 65 N. C. 13; Terry v. Eagsdale, 33 Gratt. 342; Hibernia Nat. Bank tJ. Laoombe, 84 N. Y. 367; Hunter v. Wetsell, ib. 549; Munger u. Albany City Nat. Bank, 85 N. Y. 580. (I) Watts t). Christie, 11 Beav. 546; Eng., 1 C. M. & R. 744; Gumming v. 18 L. J. Ch. 173. Shand, 5 H. & N. 95; 29 L. J. Ex. 129. (m) Agra Bank, &c. v. Hoffman, 34 As to orders on bankers operating by L. J. Ch. 285. way of Novation and Substilutimi, see {x) Marzetti v. "Williams, 1 B. & Ad. post, p. * 1229. 424; Rolin v. LSteward, 14 C. B. 595; {y) Shillibeer v. Glynn, 2 M. & W. 23 L. J. C. P. 148; Boyd r. Emmerson, 143; Wheatley v. Low, Cro. Jac. 668; 2 Ad. & E. 184; Whitaker v. Bank of Loe's case. Palm. 281. 54:3 * 370 CONTRACTS FOE SERVICES. [BOOK II. blank, to the person who seems to be the holder, (z) If bankers have indorsed a bill of exchange accepted by a customer, and the bill is presented to them when it arrives at maturity, and they pay it on the day it becomes due, the bankers so paying may reserve to themselves the right to examine into the state of the accounts between them and the acceptor, their customer, and determine whether they honor the bill for the acceptor, or take it up on their own account as indorsers. (a) As to deter- mination of authority of bankers, see sect. 75 of Bills of Ex- change Act in Appendix. Payment of Cheques under Suspicious Circumstances — Negli- gence. — If bankers pay a cheque under circumstances of sus- picion which ought to have put them on their guard and induced them to make inquiry before paying it, they cannot debit the customer with the amount, if the cheque was never uttered or put into circulation by the customer. Thus where the customer, finding that he had drawn a cheque for a wrong sum, tore it into four pieces and threw them away, and these four pieces were picked up and neatly pasted together, and pre- sented at the bank by a stranger for payment, but the rents and the pasting of the paper were quite visible, and the face of the cheque was soiled and dirty, and the cashier, [*370] * nevertheless, paid it without demur or inquiry, it was held that the bankers had been guiltj'' of a neglect of duty, and could not, under the circumstances, debit their customer with the payment. (&) But if the tearing is done in such a way that it is reasonable to presume it to ha^-e been done for the purpose of transmitting the cheque through the post, there will then be no neglect of duty on the part of those who pay the cheque in ignorance of its having been torn up with the inten- tion of cancelling it. (c) Joint Accounts and Joint Deposits -with Bankers. — Where money is paid into a bank to the joint account of several persons nominatim, it cannot be drawn out by one of them alone; for the bankers are not discharged from liability by (c) Kymer I". Laurie, 18 L. J. Q B. (b) Scholej' u. Ramsbottom, 2 Campb. 218; Eobarts v. Tucker, post, p. *372. 485. {a] Pollard v. Ogden, 2 Ell. & Bl. (c) Ingham v. Primrose, 28 L. J. 464; 22 L. J. Q. B. 439. C. P. 294. 544 CHAP. II.] WORK AND LABOR. * 371 payment to one of the depositors without the authority of the others, (d) But when one dies, the money may be drawn out by the survivor. Sucli is the case with money deposited in a bank in the joint names of husband and wife, (e) Deposits aud Accounts -w^ith Bankers in the Names of Trustees, Agents, and Receivers.^ — In a banking account of the ordinary kind between a banlcer and his customers, it is not competent to any third party to interpose and to say that the customer was his agent, and that the banker has contracted with sucli third party through the medium of such customer, his agent. All cheques and money paid into the bank by the customer are, as between the banker and the customer, the cheques and money of the customer, whoever may be the real owner of them. If the owner of the cash allows his agent to deal with it as his own, and pay it into the bank in his own name, he has no power over it after it has reached the banker's hands. On the other hand, it is not competent to the banker, after he lias placed the money to the credit of the customer, to deny the title of the latter to the money, and to set up a. jus tertii, or to revoke the credit. (/) If several joint owners of a sum of money allow one of them to deal with their money and place it in the hands of a banker to his separate account, the banker must treat that as a contract with the one individual dealing with him, and the latter cannot impose upon the banker as many contracts as there are owners of the money, {g) Separate Accounts opened by the Same Person in Different Capacities. — Generally, as between banker and customer, the banker looks only to the customer in respect of the account opened in that customer's name, and whatever cheques that customer chooses *to draw, the banker is to honor, [*371 ] and is not to inquire what the moneys are that are paid into that account, or for what purpose they are drawn out. But when the customer opens two separate accounts, the one 1 See ^rational Bank v. Insurance Co., 104 U. S. 54. {d) Innes i). Stephenson, 1 Mood. & (/) Tassell v. Cooper, 9 C. B. 533. Rob. 147; Simsti. Brittain, 4 B. & Ad. [g) Sims v. Brittain, 4 B. & Ad. 375. 375; Pinto v. Santos, 5 Taunt. 447. {e) Williams v. Davies, 33 L. J. P. & M. 127. voi,. I. 35 545 * 371 CONTRACTS FOR SERVICES. [BOOK II. beinCT a private account of his own, and the other an account as trustee or receiver of the moneys of a known third party, the bankers are bound to take notice that the moneys placed to the last-named account are not the moneys of their customer, and tliey cannot make an arrangement with the latter for an appro- priation of the balance in their hands on the fiduciary account to liquidate a balance due to them from their customer upon his own private account. They have no right to combine with the receiver for the appropriation of his principal's money to dis- charge the private debt due to them from the receiver; for no person dealing with another, and knowing him to have in his hands or under his control money belonging to a third person, can deal with the individual holding that money for his own private benefit, when the effect of the transaction is that a fraud is necessarily committed upon such third party. (7i) Loss of Trust-Money in the Hands of Bankers. — If an agent or trustee who has received a sum of money for the use of his principal or beneficiary pays the money into a bank in the name of tlie principal or beneficiary, and places it to the account of the latter, the amount then remains in the bank at the risk of the principal, and if the banker fails, the principal must bear the loss. But if tlie agent or trustee pays in the money to his own account and his own credit, this is a user of the money for which he will be responsible. If he had an implied authority to use the money, and has so exercised it, then he stands, as before mentioned, in the position of a borrower for use and consump- tion. In either case he is bound to make good the loss, (i) Payment of Forged Cheques, Drafts, and Orders on Bankers — Forgery facilitated by the Negligence of the Customer.^ (See 1 For a summary of law applicable to tlie various ways in which cheques may be forged or altered, see Morse, Banks (2d ed.) 327-367, and U. S. Dig. tit. Bank- ing, sect. 194. When a debtor pays his debt by a cheque to the order of his creditor, or of one nominated by the latter, and the cheque is lost by, or fraudulently obtained from. (h) Bodenhara v. Hosldns, 21 L. J. Ch. 83; Ex parte Morier, 12 Ch. D. 491, C. 864; 16 Jur. 721; Bridgman u. Gill, 24 A. Beav. 302; Kingston, ex parte, L. R. 6 (i) Robinson v. Ward, R. & M. 276; Ch. 632; per Blackburn, J., Bailey v. Wren d. Kirton, 11 Ves. 377; Rockeu. Finch, L. R. 7 Q. B. 42; 41 L. J. Q. B. Hart, ib. 61; Massey v. Banner, 4 Mad. 418, 419; 1 Jac. & Walk. 241. 546 CHAP. II.] WORK AND LABOR, * 372 Bills of Exchange Act in Appendix.) — If money i.s drawn out of the bank by means of a forged order purporting to have been made by the customer, the banker must sustain the loss. Where a cheque drawn by a customer on his banker for a sum of money described in the body of the cheque in words and figures was afterward altered by the holder, who substituted in a different handwriting a larger sum than that mentioned in the cheque, in such a manner that no one in the ordinary course of business would have observed it, and the banker paid the larger sum to the holder, it was held that he could not * lawfully debit the customer with the over-pay- [*372] the creditor, and is paid to the fiuder or fraudulent holder on a forged indorse- ment of the payee's name, the debtor is not discharged, and may again be called upon to pay his debt, at least unless the cheque was taken in absolute payment and extinguishment thereof. Thomson v. Bank of British North America, 82 N. Y. 1. A bank paid a cheque upon a forged indorsement, charged the amount to the drawer, and settled with him accordingly. Upon suit brought by the payee a,gainst the bank, — Held, that there was sufficient privity to maintain the action. Millard v. National Bank of the Republic, 3 MacArthur, 5i. A raised cheque, payable to A or bearer, was presented by B, whom A had requested to cash the same, after banking hours, to the cashier, who pronounced it good. B took an assignment of the cheque from A and paid the amount thereof. The bank subsequently cashed the cheque in ignorance of the alteration, of which B also was ignorant. Held, that the bank could recover from B the -amount paid. Parke v. Roser, 67 Ind. 600. The duty of the drawee, upon acceptance of a cheque, to pay the same only upon the genuine indorsement of the payee named therein is not affected by a custom among bankers as to the mode of ascertaining the identity of the person indorsing the payee's name and receiving payment. Dodge «. National Exchange Bank, 30 Ohio St. 1; s. c. 20 ib. 234. A bank is not estopped from alleging the forgery of a cheque by the fact that the teller when the cheque was presented for certification, upon doubts being expressed regarding it by the person who presented it, stated that it was right in every particular. It is no part of the teller's duty to give an assurance as to the genuineness of a cheque, except regarding the drawer's signature, and beyond that the bank is not bound \>j his representations. Security Bank v. National Bank of the Republic, 67 N. Y. 458. As to how far the drawer's cheque-book, containing the stubs of cheques alleged to have been forged, is evidence, see Hardy v. Chesapeake Bank, 51 Md. 562. See, further, Schroeder v. Harvey, 75 111. 638; First Nat. Bank v. Richer, 71 111. 439 ; De Feriet v. Bank of America, 23 La. Ann. 310 ; Commercial Bank v. First Nat. Bank, 30 Md. 11 ; National Bank of North America v. Bangs, 106 Mass. 441; following Merchants' Nat. Banku National Eagle Bank, 101 Mass. 441; Belknap v. National Bank, 100 Mass. 376; Charles River Nat. Bank v. Davis, ib. 413; National Park Bank v. Ninth Nat. Bank, 46 N. Y. 77; Seventh Nat. Bank V. Cook, 73 Pa. St. 483; City Bank v. National Bank, 45 Tex. 203; Rowe v. Putnam, 131 Mass. 281; Laborde v. Assoc, 39 Am. Deo. 517, and n. 547 *372 CONTEACTS FOK SERVICES. [BOOK II. ment. (k) But if the banker has been defrauded through the care- lessness or negligence of the customer in drawing the cheque, the loss luust be borne by the customer. Where the customer signed several blank cheques and left them in the hands of his wife to be filled up, and she handed a cheque to a clerk to be filled up for £50 2s. M., and the clerk filled up the cheque for the specified amount, and showed it to the wife, but the " fifty " was com- menced in the middle of the line, so that the words " three hundred and " could easily be written before it, and space was left at the bottom of the cheque for the insertion of the figure 3 between the £ and the figures 50, and the clerk on his way to the bank altered the cheque to £350, and got that amount from the bankers and absconded, it was held that the customer must bear the loss, as it had been occasioned by his own negli- gence and the negligence of his agent in dealing with the blank cheque, (l) Negligence in dealing with a cheque or draft must, in order to amount to an estoppel, be negligence in the trans- action itself, and tlie proximate cause of leading the third party into mistake, and must be a breach of some duty owing to such third party or to the public at large, {in) Forged Indorsements. — We have seen that, if a bill of ex- change has been accepted by a customer, payable to order at his bankers, the acceptance of the bill is an authority to the bankers to pay the bill only to a person wlio becomes tlie holder by a genuine indorsement from sucli customer. If bankers wish to avoid the responsibility of deciding on the genuineness of the indorsement, thej' must require their customer to make las bills payable at his own offices, and to lionor tlie bills by giving a cheque on them ; for they cannot debit a customer with a pay- ment made to a party who claims through a forged indorsement, and so cannot give a -valid discharge for the bill, unless there are circumstances amounting to a direction from the customer to the bankers to pay the bill without reference to the genuineness of (k) Hall V. Fuller, 5 B. & C. 750; 8 (!) Youngs;. Grote, 12 Moore, 489; i D. &R. 464. As to .'idvances by b.ankers, Bing. 257. at the request of tlieir custoiners, on (m) Arnold u The Cheque Bank, 1 C. forged securities, see Woods r. Thiede- P. D. 578; Patent Safety Gun Cotton Co. mann, 1 H. & C. 478; or on serurities v. Wilson, 49 L. J. 713 C. A. fraudulently obtaini'il,/;r Carew's Estate, 31 Bear. 39; 31 L. J. Ch. 214. 54S CHAP. II.] WOEK AND LABOE. * 373 the indorsement, or a subsequent admission on the part of the customer of the genuineness of the indorsement inducing the bankers to alter tiieir position, so as to preclude the customer from showing it to be forged, (n) But by the 16 & 17 Vict. c. 59, sect. 19, any draft or order drawn upon a banker for a sum of money payable to order on demand, which shall wlien presented for payment purport to be indorsed by the *person [*373] to whom the same shall be drawn payable, shall be suffi- cient authority to the banker to pay the amount of such draft or order to the bearer thereof, and it shall not be incumbent on the banker to prove that such indorsement or any subsequent indorsement was made by and under the direction or authority of the person to whom the draft or order was or is made payable, either by the drawer or any indorser thereof And see also sect. 60 of Bills of Exchange Act in Appendix. But this enacts ment does not extend to protect any other person who takes the cheque upon the faith of such forged indorsement, (o) An in- dorsement of a cheque " per proc." or "as agent" is an indorse- ment by the payee within the statute, although the indorser has no authority to indorse, (p) Cheques paid by Mistake. — If a banker pays the cheque of a customer, supposing that he has funds, and afterward finds that the customer lias overdrawn his account, and that he has no funds, the banker cannot recover the money from the party who presented the cheque ; (q) but if the cheque was not drawn on the banker, and the latter does not pay the cheque as a banker honoring the draft of his customer, but in the same way as if he were giving change for a bank-note, all parties believing the cheque to be genuine, he can recover back the money he has paid, if it turns out to be forged and worthless, (r) Payment of Cheques at Branch Banks. — The different branch banks of a banking company are, as regards their separate custo- mers, separate companies, so that a customer who keeps an account with one branch has no right to draw cheques upon, and (h) Bobarts v. Tucker, 16 Q. B. 578; (p) Charles v. Blackvvell, 1 C. P. D. spct. 2i of the Bills of Exch. Act in 548; 2 C. P. D. 151, C. A. App. (?) Chambers v. Miller, 13 C. B. N. s. (o) Osden V. Benas, L. E. 9 C. ?. 125; 32 L. J. C. P. 30. 513; BobbettB. Vinkett, post, p. *375. (r) Woodland v. Fear, 7 Ell. & Bl. 522. 549 * 373 CONTEACTS FOR SERVICES. [BOOK II. have them cashed by, another branch. They are also separate and distinct for many other purposes, (s) But in principle they are agencies of one principal banking firm, although regarded as distinct for special purposes, {t) Where a customer had an account with two branches of a bank, it was held that, in the absence of any special agreement with their customer, the bank had a right to consider the two accounts as one, and to refuse the customer's cheque wlien, on adding the two accounts to- gether, the balance was against him. (u) Crossed Cheques.i— By the 39 & 40 Vict. c. 81, called "The Crossed Cheques Act, 1876," — the provisions of which are re- ' On "certified" cheques, as tliey are termed in the United States, consult Ball, Isat. Bank, 72-76 and 207; Morsr, Banks (2d ed.), 199, 321, 358, 364, also 94 and 103; U. S. Dig. tit. Hanking, sect. 187. By tcrtifying a cheque, the bank becomes the primaiy debtor, and continues liable indefinitely, like an acceptor of a bill, until payment. Nolan v. Bank of New York, 67 Barb. 24. After the certification of a cheque by the drawee, the drawer is discharged only in the event of a loss or injury accruing from a neglect to present for payment within a reasonable timi; after the date of the cheque, or in the event of a neglect to prisieiit for payment within six years from the date. Thomson v. Bank of British North America, 45 N. Y. Superior Ct. 1. Where a bank certifies a chetjue, which is afterward transferred to an innocent holder for value, it cannot .set up in defence to an action thereon that the cheque was obtained from the n)aker fraudulently and without value, or that the name of the payee i.s fictitious, where the per.sou obtaining the cheque and the certification was intended to be the payee by the maker. Merchants' Loan, &c. Co. v. Bank of the Metropolis, 7 Daly, 137. If a I'heque is raised and subsequently certified, the bank is liable to a holder in good faith (Louisiana Nat. Bank v. Citizens' Bank, 28 La. Ann. 189), and so it is when chargeable with negligence in certifying a cheque that was drafted in such a way as to admit of a fmudulent alteration of the amount b^'ing easily made and the cheque was raised (Hclwege v. Hibernia Nat. Bank, ib. 520). After a cheque diawn for the payee's accommodation, but with no restriction as to its use, has passed to a holder in good faith and been certified, the drawer can- not escape liability by notifying tlie bank not to pay it. Freund c. Importers*, &:;. Bank, 76 N. Y. 352. To render liable the drawer of a cheque certified by the bank as "good," tho holder must present it for jiayment within the business hours of the next day after it is received. Andrews v. Gernum Nat. Bank, 9 Heisk. 211; compare Schoolfield v. Moon, ib. 171. A clieque containing the recital: "To hold as collateral for 1000 P. T. oil, pipage paid," &c., and certified as "flood when properly indorsed," is not drawn (s) Woodland v. fear, 7 Ell. & Bl. {t) Prince v. Oriental Bank Corpor ' 521; 26 L. J. Q. B. 202; Clode v. Bay- ation, 3 Ap. Gas. 325. ley, 12 JL & W. 51. («) Oarnett v. M'Kewan, L. K. 8 Ex. 10; 42 L. J. Ex. 1. 550 CHAP. II.] WORK AND LABOK. * 374 produced, with two slight additions, sect. 77 (1) (6), in the Bills of Exchange Act, 1882, sects. 76-82, in Appendix, — it is enacted by * sect. 3, that, in this act, "cheque" means [ *374 ] a draft or order on a banker payable to bearer, or to order on demand, and includes a warrant for payment of divi- dend on stock sent by post by the Governor and Company of the Bank of England or of Ireland, under the authority of any act of parliament for the time being in force. " Banker " includes persons or a corporation or company acting as bankers. By sect. 4, where a cheque bears across its face an addition of the words " and company," or an abbreviation thereof, between two parallel transverse lines, or of two parallel transverse lines simply, and either with or without the words " not negotiable,'' that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally. Where a cheque bears across its face an addition of the name of a banker, either with or without the words " not negotiable," that addition sliall be deemed a crossing, and a cheque shall be deemed to be crossed specially, and to be crossed to that banker. By sect. 5, where a cheque is uncrossed, a lawful holder may cross it generally or specially. Where a cheque is crossed generally, a lawful holder may cross it specially. Where a cheque is crossed generally or specially, a lawful holder may add the words " not negotiable." Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker, his agent, for collection. By sect. 6, a crossing authorized by this act shall be deemed a material part of the cheque, and it shall not be lawful for any in the usual cour.se of lianking business, and such certification does not hind the bank. Dorsey v. Abrams, 85 Pa. St. 299. See, further, Brown v. Leckie, 43 111. 497; Casco Bank u Keene, 53 Me. 103; Continental Bank v. Bank of the Commonwealth, 50 N. Y. 575; National Bank of Commerce v. National Mechanics' Banking Assoc, 55 N. Y. 211; Marine National Bank v. National City Bank, 59 N. Y. 67; Security Bank v. National Bank of the Republic, 67 N. Y. 458; Seventh National Bank v. Cook, 73 Pa. St. 483; Givard Bank v. Bank of Pennsylvania Township, 39 Pa. St. 92; First National Bank v. Merchants' National Bank, 7 W. Va. 544. 551 *375 CONTRACTS FOE SERVICKS. [BOOK II. person to obliterate or, except as authorized by this act, to add to or alter the crossing. By sect. 7, where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker. Where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed, or to his agent for collection. By sect. 8, where a cheque is crossed specially to more than one banker, except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof By sect. 9, when the banker on whom a crossed cheque is drawn has in good faith, and without negligence, paid such clieque, if crossed generally to a banker, and if crossed specially to the banker to whom it is crossed, or his agent for collection, being a banker, the banker paying the cheque and (in case such cheque has come to the hands of the payee) the drawer thereof shall respectively be entitled to the same rights, and [*375] be placed in the same position in *all respects, as they would respectively have been entitled to and liave been placed in if the amount of the cheque had been paid to and received by the true owner thereof By sect. 10, any banker paying a cheque crossed generally other- wise than to a banker, or a cheque crossed specially otherwise than to the banker to whom the same shall be crossed, or his agent for collection, being a banker, shall be liable to the true owner of tlie cheque for any loss he may sustain owing to the cheque having been so paid. By sect. 11, wliere a cheque is presented for payment which does not at tlie time of presentation appear to be crossed, or to have had a crossing which has been obliterated, or to liave been added to or altered otherwise than as authorized by this act, a banker paying the cheque in good faith and without negligence shall not be res]ionsible or incur any liability, nor shall the payment be questioned by reason of the cheque having been crossed, or of the crossing having been obliterated, or having been added to or altered otherwise than as authorized by this act, and of payment being made otherwise than to a banker, or 552 CHAP. II.] WORK AND LABOR. * 376 the banker to whom the cheque is or was crossed, or to his agent for collection, being a banker (as the case may be). By sect. 12, a person taking a cheque crossed generally or specially, bearing in either case the words "not negotiable," shall not have, and shall not be capable of giving, a better title to the cheque than that which the person from whom he took it had. But a banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself, shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment, (ivw) The above act was passed in consequence of the decision in Smith V. Union Bank of London, (x) The plaintiff drew a cheque on M. & Co., crossed L. & C. Bank. It was drawn to order, and the indorsement forged. The defend- ant became an innocent holder, and sent it to his bankers, who sent it to M. & Co., who cashed it, not noticing it was crossed L. & C. Bank. The jury found the plaintiff, the payee, and M. & Co. guilty of negligence. It was held that the defendant had acquired no title, that M. & Co. had. paid the money to the wrong bankers, and that the plaintiff might recover, (y) Lien of Bankers. — Bankers have a lien upon all the secur- ities of their customers in their hands for advances in the ordinary * course of business, unless such securities [*376] have been received under special arrangement inconsis- tent with the exercise of the right, (z) or for some special pur- pose. («) But they have no lien on boxes and their contents de- posited with them for convenience and safe custody merely. (&) Damages for Non-payment of Cheques by Bankers. — If a banker refuses to pay a cheque drawn upon him by a trader who keeps an account with him, and who has sufficient assets in the (ww) See Matthiessen v. London & City Bank, ex parte, 3 Law T. E. N. s. County Bank, .5 C. P. D. 7, and sects. 792; /li. re European Bank,L. R. 8 Cli. 41. 81 & 82 in Bills of Exch. Act in App. (a) Brandao v. Bamett, 12 CI. & Fin. (x) Smith w. Union Bank of London, 787; Wylde v. Radford, 33 L. J. Ch. L. E. 1 Q. B. D. 31. 51 ; London Chartered Bank of Austra- iy) Bobbettt). Pinkett, 1 Ex. D. 368. lia v. White, 4 Ap. Ciis. 413. (2) Jones u. Peppercorn, 28 L. J. Ch. {b) Leese -u. Martin, L. E. 17 Eq. 158; Meadows, in re, 28 L. J. Ch. 891; 224. 553 * 376 CONTRACTS FOR SERVICES. [BOOK II. bauds of the banker to meet tbe cheque at the time it is pre- sented for payment, such trader is entitled, as we have seen, to recover suljstantial damages without proof of any actual damage, since the dishonoring of cheques is likely to be very injurious to the credit of persons in trade, (c) Of a Mandate or Gratuitous Commission. ^ — If the bailee or depositary expressly or impliedly undertakes for something more than the mere passive custody of the thing bailed, the bailment advances from a mere naked deposit or simple bail- ment to a mandate, and the bailee becomes clothed with the duties and implied engagements of a mandatary, in addition 1 See Edwards, Bailments, sects. 74-119; Sehouler, Bailments, Part II. p. 28, &c.; Story, Bailments, sects. 137-218; U. S. Dig. tit. llnilmcnl, sects. 114-164. Some county record-books and papers liavinj,' Ijeen stolen, the county officers deposited with A a sum of money as a reward to be paid on the leturn of the property. Subsequently A received a paper, signed by the deputy sherifl of the county, acknowledging the receipt of the record-books, "also papers and small index-books," and thereu|)on A paid the reward. Held, that A, being a bailee without compensation, was not responsible, in the absence of bad faith, for the condition of the property at the time of its return. Eldridge v. Hill, 97 U. S. 92. A gratuitous bailee who was to take bonds abroad, deposit them for sale, and in- form the owner of such deposit, is liable only for gross negligence, which is for the jury to determine, and their verdict will not be disturbed whete there are two inferences equally reasonable that may be drawn from the evidence. Carrington u. Ficklin, 32 Graft. 670. Joint mandataries must act jointly, and the death or withdrawal of one of them terminates their power. Hawley t'. Ker-ler, 63 N. Y. 114, 121; see Hamilton v. Mutual Life In.s. Co., 9 Blatchf. 235; Siiicdair i). Jackson, S Cow. 543. Like other bailees, a mandatary can maintain an action against any thii'd per- son for the loss, injury, or conversion of the property. Little v. Fossett, 34 Me. .545; Bowen v. Fenner, 40 Barb. 383; Bass «. Pierce, 16 Barb. 595; Paddock ■». Wing, 16 How. Pr. 547; Green v. Clarke, 12 N. Y. 343; White v. Bascom, 28 Vt. 2B8. The rule that a mandatary, like a depositary, is liable only for gross negligence or bad faith, must be understood with reference to the subject and nature of the bailment and the cii-cumstances attending its execution. Tracy v. Wood, 3 Mas. 132; see McNabb v. Loekhart, 18 Ca. 495; Dunn v. Branner, 13 La. Ann. 452; Conway Bank v. Anieiican Exp. Co., 8 Allen, 512; Eddy r. Livingston, 35 Mo. 487; Tompkius v. Saltmarsh, 14 Serg. & Pi. 27.'s Jenkins v. Motlow, 1 Sneed, 248. The delivery to another person of a package containing money in order to com- plete the execution of the trust, has been held to be gross negligence. Skelley v. Kahn, 17 HI. 170; Colyar u. Taylor, 1 Coldw. :172. As the mandataiy acts gratuitou.sly, the mandator may at any time revoke the mandate, as by transferring the property to another (Hodges v. Hurd, 47 111. 363), and sufficient notice is given to the mandatary by the appointment of another to relieve him of the trust (Copelandw. Mercantile Ins. Co., 6 Pick. 198). (c) Eolin V. Steward, 14 C. B. 595; 23 L. J. C. P. 148. 554 CHAP. II.] WORK AND LABOR. * 377 to those of a. mere depositary for keeping. If money, is bailed to a man upon the faith of a promise made by him to take and deliver it to a banker, or to invest it in the public funds, or lay it out in the purchase of lands, this is an express mandate. An implied mandate arises when the bailee takes charge of living animals or perishable chattels, for whose preservation and safe-keeping a certain amount of work and labor, attention and skill, is necessarily requisite, and which the bailee, by accepting the trust and duty, impliedly undertakes to furnish. It is essential to the existence of a mandate that it be gra- tuitous ; for if anything is to be paid for what is expressly or impliedly agreed to be done, the contract immediately becomes a contract of letting and hiring of labor and skill to be per- formed and exercised upon the thing bailed, (d) The term inandatum or mandate was applied in the Roman law to all gratuitous agencies and procurations, whether made concerning land or realty or chattels, and whether accompanied or unaccompanied by any transfer or delivery of property, (e) In the common law, the term is generally restricted to express or implied promises made on bailments of chattels that something shall be *done with them gratuitou.sly for [*377] the benefit of the bailor. The bailor who makes the re- quest and gives the directions as to the disposal of the chattel is called the mandator ; and the bailee who receives the chattel upon the terms expressed or implied, and assents to the directions, and undertakes the trust to be performed, is called the mandatary. So long as there has been no actual bailment by the delivery and acceptance of the ciiattel, there is no binding contract of man- date. A promise to do something with a thing that has never been put into the actual or constructive possession of the prom- isor is a mere nudum pactum which may be revoked; but when the bailment has been made upon the faith of the promise, and the promisor has obtained posses.sion of the chattel in execution of the mandate, the contract is complete, and he is bound faithfully to discharge the trust he has undertaken. (d) "In sunima sciendum est, man- stituta, incipit loeatio et conductio esse." datum nisi griituitum sit in aliam for- — Inst. lib. 3, tit. 27, sect. 13. mam negotii cadere; nam, mercede con- (e) Inst. lib. 3, tit. 27. 555 *378 CONTRACTS FOE SERVICES. [BOOK II. Nonfeasance and Misfeasance.' — It has been said, in refer- ence to gratuitous undertakings to perform work, that if the promisor does not proceed on the work, no action will lie against him for the nonfeasance ; but " if he proceeds on the employment, he makes himself liable for any misfeasance in the course of that work." But when a man promises to perform work upon, or to do something with, the chattel of another, and the chattel is bailed to him for the purpose expressed, his acceptance of the possession of the chattel in execution of his engagement is an "entering on the work and employment;" and if, after having accepted such possession and taken the chattel away with him, he neglects to do that which he prom- ised to perform, this neglect is a misfeasance, for which he shall be responsible. (/) " A bare being trusted," observes Holt, C. J., " with another man's goods must be taken to be a sufficient con- sideration, if the bailee once enter upon the trust and take the goods into his possession." (ij) Where a sum of money was bailed to a party upon the faith of an undertaking made by him to cause the suin to be paid to the bailor or his order at a dis- tant place, it was held that the bailment of the money was a sufficient consideration for the undertaking, and that the man- datary was responsible for the non-fulfilment of his engage- ment, {h) So where certain boilers were delivered to a man upon the faith of an undertaking made by him to weigli them gratuitously and return them to the bailor in as perfect and complete condition as they were in at the time of the making of the bailment, and the mandatary took the boilers to pieces in order to weigh them, but refused to put them together [*378] again, it was held that he was responsible for * his breach of contract, and must make good the damage that had been sustained by the mandator. The mandatary may, indeed, revoke his promise and return the chattel, if he does it without delay, and before his acceptance of the trust and omission to fulfil it have occasioned loss or damage to the man- 1 See Morrison v. Orr, 3 Stew. & P. 49, 23 Am. Dec. 319, and note by A. C. Freeman, ib. 322. (/) Holt, C. J., Coggs V. Bernard, 2 (g) Coggs v. Bernard, 2 Eaym. 912. Raym. 919, 920; ELsee i'. Gatward, 5 T. (h) Shillibeer v. Glynn, 2'm. & W. R. 149; Balfe v. West, 22 L. J. C. P. 143. 175; 13 C. B. 466. 556 CHAP. II.] WOEK AND LABOR. * 378 dator ; but he cannot, if the revocation will place the latter in a worse position than he was in at the time the mandate was accepted and the promise made, lawfully withdraw such promise, and refuse to execute the trust. " Every man is at liberty,'' it is observed in the Institutes, " to refuse a mandate ; but when once accepted and undertaken, it must be performed or re- nounced as soon as possible, that the mandator may transact the business himself or through another." (i) If, therefore, a part}- undertakes to procure an insurance for another, and proceeds to carry liis undertaking into effect by getting a policy underwritten, but deals so negligently with the policy that the benefit of the insurance is totally lost to the party for whom he promised to effect it, he is liable to an action (k) ; but if, after having made the promise, he simply neglects to get the insurance effected, it is said he is not liable for the default. (/) Bailment of Money and Chattels to be carried gratuitously — Loss or Damage from Negligence. — A bailee who has undertaken gratuitously to convey money or goods from one place to another, and has entered upon the trust by accepting possession of the money or the goods, is bound to exercise the same care and dili- gence in the execution of the task as a person of ordinary care and prudence might be expected to exercise in the conveyance of his own property. If by negligence and mismanagement in the accomplishment of his undertaking, the money or the goods are lost or stolen, injured or spoiled, he will be responsible for the loss. But he is not responsible for the loss of the money if he is forcibly robbed without any default on his part. Bailments of Chattels to be mended or repaired gratuitously - — Employment of Unskilful Persons. — If a chattel is bailed to a workman or artificer in some particular art, craft, or profession, upon the faith of an undertaking made by the bailee to mend, repair, or improve it gratuitously for the benefit of the mandator, the mandatary must complete the work within a reasonable period, and must be especially mindful that the article is not injured in his hands during the performance of the work through a want of that knowledge and skill which every workman and (i) Inst. lib. 3, tit. 27, .sect. 11. (?) Thorner. Deas, 4 Johns. U.S. 84. {h) Wallace v. Tellfair, cited Wilkin- son V. Coverdale, 1 Esp. 76. 557 * 379 CONTRACTS FOR SERVICES. [BOOK II. artificer in his particular art or craft is bound to possess ( post, pp. * 404, * 407). But if a person known to be unskilled [ * 379] in the particular work or * employment he gratuitously undertakes, does the work at the solicitation of a friend with such ability as he possesses, he stands excused, although it is unskilfully done ; for it is the mandator's own folly to trust him, and the party engages for no more than a reasonable exer- tion of his capacity. Thus where a mandatary undertook to jiet some articles that had been bailed to him entered at tlie Custom House, and gave by mistake a wrong description, but appeared to have acted bona fide and to the best of his ability, it was lield that he was not responsible for a seizure of the goods by the Custom House officers. " Had the situation or proi'essiou of the bailee," observes Lord Loughborough, " been such as to imply skill, an omission of that skill would have been imputable to him as gross negligence. If in this case a sliipbroker or a clerk in the Custom House had undertaken to enter the goods, a wrong entry would in him be gross negligence, because the situa- tion and employment necessarily imply a competent degree of knowledge in making such entries.'' {m) In Respect of the Custody and Safe-keeping of the Chattel, the mandatary is clothed with the ordinary liabilities and responsi- bilities of a depositary. Bailment of Money for Investment. — If money is bailed to a man upon the faith of a promise or assurance made by him to place it out at interest, or to purchase an annuity with it for the benefit of the bailor, the mandatary who accepts the money and enters upon the execution of the trust impliedly jDromises to be diligent and careful in the fulfilment of liis undertaking, and to exercise common and ordinary care in the selection of a safe investment ; and if the money is lost by his miscarriage and neglect, an action will lie against him for the loss. («) Eut the mandatary is not responsible (if he does not exercise any trade or profession denoting that he has peculiar skill in money matters) for the exercise of more than ordinary care and caution ; and he is not liable for the failure of the investment, if he has used {ill) Sliiells V. Blackburae, 1 H. Bl. Whitehead v. Greetham, 10 Moore, 19+; 159; Moore v. Morgue, 2 Cowp. 479. 2 Bing. 464. (n) Cogga V. Bernard, 2 Eaym. 910; 558 CHAP, II.] WORK AND LABOE. * 380 such skill and knowledge as he possessed, and has acted with uprightness and honesty of purpose in the transaction of the business confided to him. " The only duty that is imposed upon him under such a retainer and employment is a duty to act faithfully and honestly, and not to be guilty of any gross or corrupt neglect in the discharge of that which he undertakes to do." (o) But an attorney, whose profes.sion and employment naturally lead him to have some knowledge of securities for money and pecuniary * investments, is responsible [*380] for the exercise of a reasonable amount of professional knowledge and skill in the selection of a safe investment, al- though he acts gratuitously, (p) His office, profession, and employment imply skill and invite confidence ; and an omission of that skill is imputable to him as gross negligence, {q) If a sum of money is intrusted to a man to be transmitted to some distant part, or to be laid out by him in some purchase or invest- ment for the benefit of the mandator, and with an express or implied authority or permission to use the money himself until the purpose for which it was bailed can be accomplished, and the mandatary accordingly spends the money with the intention of replacing it when necessary with other money, or pays it into his bankers to his own account, and not to the separate account of the mandator, the bailment of the money becomes a loan for use and consumption, and the bailee is clothed with the duties and liabilities and implied engagements of a borrower by way of mutuum, in addition to those of a mandatary {ante, p. * 347). In these cases the money is payable, as we have seen, absolutely and at all events ; and the bailee cannot excuse himself from the obligation to repay the amount by showing a loss by robbery or from inevitable accident. Bailments of Living Animals — Negligent Management. — If the subject-matter of the bailment consists of living animals, such as horses, oxen, cattle, or sheep, the mandatary is bound to furnish them with suitable food and nourishment, and to give them a proper and reasonable amount of exercise and fresh air. If a (o) Dartnall v. Howard, 4 B. & C. 311; Craig D.Watson, 8 Beav. 427; Smith 350, 351. V. Pococke, 23 L. J. Ch. 545; 18 Jur. 478. (p) Donaldson v. Haldane, 7 01. & (?) Shiells v. Blackburne, ante, p. Fin. 762; Bourne 0. Diggles, 2 Chitt. * 379. 559 * 381 CONTRACTS FOE SEKVICES. [BOOK II. man takes charge of cattle or sheep, and afterward takes no heed of them, but lets them stray away on a common, and get drowned or lost, this is a breach of trust, and he is responsible for the loss, (r) If he turns a horse, of which he has consented gratuitously to take charge, into a dangerous pasture after dark, and the horse falls into a pit or well, or into the shaft of a mine, this is a gross neglect and breach of trust, and he shall be re- sponsible for the loss, (s) If he places a horse in a pasture sur- rounded by rotten and very defective fences, and the liorse, by reason thereof, strays away and is lost, this is also a breach of trust, for which he shall be answerable ; but if the horse was a wild, ungovernable animal, and got away through its own impatience of restraint as much as by reason of the defective fences, then the bailee will not be responsible for the loss, (t) [ * 381 J * Where an agister (not a gratuitous bailee) placed the plaintiff's horse in a field where there were heifers, knowing that a bull was in the habit of getting into the field, though he did not know it was vicious, and the bull gored the horse, it was held that the scienter was immaterial, as he had contracted to take reasonable care, and had not done so. {u) What is, and what is not, gross negligence amounting to a breach of trust is often a mixed question of law and fact, but more gen- erally a pure question of fact. It must be judged of by the actual state of society, the general usages of life, and the dangers peculiar to the times, as well as by the apparent nature and value of the subject-matter of the bailment, and the degree of care it seems to require. (,?') Where a man proved to be con- versant with, and skilled in, horses was commissioned to ride a horse to a neighboring village, for the purpose of showing it for sale, and on his arrival he rode the horse into the race-ground, which was wet and slippery, and the horse slipped and fell sev- eral times, and at last in falling broke one of its knees, it was held that the bailee had been guilty of a culpable neglect and breach of trust, and was answerable for the damage, (y) If a (r) Hil. Term. 2 Hen. VII., 9 b; (u) Smith v. Cook, L. E. 1 Q. B. D. Coggs V. Bernard, 2 Kaj'm. 913. 79; see }wst, p. *il7. (s) Roollii>.Wilson,lB.& Aid. 61,62. (a?) Story nn B.iil men ts, 9, 10. (0 Domat (Depot), sects. 3, 6. (?/) Wilson v. Brett, 11 M. & Vi. 113. 560 CHAP. II.] WORK AND LABOR. * 382 farrier undertakes to treat a living animal for some disorder gratuitously, he is nevertheless bouud to exercise the ordinary- knowledge and skill of his art or profession in the course of his treatment, and will be responsible for injuries resulting from liis neglect to do so. {z) Bailments of Perishable Commodities. — If the subject-matter of the bailment is a perishable commodity, the bailee is bound to bestow such an amount of labor and vigilance for its preser- vation as would ordinarily be bestowed by a prudent owner. If the mandatary of a valuable painting lets it lie on the damp ground, or places it in a kitchen, or against a damp wall in a room where there is no fire, when he might have placed it in a dry situation and in perfect security, this is an act of gross negligence, (a) Of the Use of the Subject-Matter of the Mandate. — A man- datary has no right to make use of the subject-matter of the bailment for his own gain and advantage ; if he does so, and it is lost, or in any way injured or deteriorated in value by reason of the user, he must, in common with a depositary, make good the loss. The moderate exercise of a horse, or a hound, or a living animal, is necessary for its healtli and safe preservation, and is, consequently, a user for the benefit of the owner. A mandatary who has charge *of a milch-cow or of [*382] sheep is bound to milk the cow and shear the sheep, and must account for the produce to the mandator ; if he sells the milk or the wool, and refuses to pay over the money, this is a conversion of it to his own use, and a breach of trust, for which he shall be held responsible. If the bailment is made under circumstances leading to the conclusion that the bailee was to have the use of the thing in return for his labor and pains in the keeping of it, as if he were to have the milk of the cow, the wool of the sheep, or the young of animals bearing increase, for his own benefit and advantage, then the bailment would amount to a contract of borrowing and lendin'^, and not to a mandate. Theft and Negligence by Servants of the Mandatary. — If the mandatary has given express directions to his servant to take (2) Shiells V. Blackbume, 1 H. Bl. (a) Mytton v. Cock, 2 Str. 1099. 162. VOL. I. 36 561 * 383 CONTRACTS FOR SERVICES. [BOOK II. into his custody money, or chattels, or securities, and do with them that which he himself has \mdertaken to perform, the negligence of the servant in carrying into execution the orders of the master is the negligence of the master, and the latter will be responsible accordingly ; but if the servant deals with the property of his own will, and without the warrant or authority of the master, the latter is not responsible, unless there be a default in him in knowingly employing a drunken, negligent, or dishonest servant. Payment of Expenses. — By the Eoman law the mandator was bound to reimburse the mandatary all expenses that he had necessarily and unavoidably incurred in the safe-keeping and preservation of a chattel intrusted to his care and management ; for it was considered that a gratuitous commission executed for the behoof of the mandator ought not to be made a subject of expense and charge to the mandatary, (h) In the common law, if the mandatary must necessarily incur expense in the execu- tion of the commission intrusted to him, he is clothed with an implied authority from the mandator to defray such expenses, (c) The French law accords to the mandatary a right to detain the chattel until he has received payment of the e.xpenses he has incurred in the execution of the trust concerning it. In our own law no such right exists ; and no lien is permitted to be clamed by one man upon the property of another for the expenses attendant upon the execution of a gratuitous com- mission. Taskwork. — A contract for the letting out and hiring of " work by the great," or, as it is more commonly called, job or taskwork, is a contract for the doing of work in the lump or the job, for a stipulated or implied remuneration, such as a con- tract to build a house, or dig a well, or make a canal, [ * 383 ] * or to construct a ship or carriage out of materials fur- nished by the employer, or to sell goods for a com- mission on the sale. A contract of this description was styled by the ci\'ilians locatio operis faciendi, or the lettino- out of work to be done. The employer was called locator operis, or {b) Dig. lib. 16, tit. 3, 1. 12, sect. 23; (c) Story's Bailments, sect. 197. Uomat, lib. 1, tit.15, sect. 2, sect. 6. 562 CHAP. II.] WORK AND LABOR. * 383 the letter-out of the work; and the workman who undertook the task, and bestowed his labor and skill in its completion, for a reward to be paid to him, was called conductor operis, or the hirer of the work. The terms letter and hirer, however, are ap- plicable, in different senses, to each of the contracting parties. Thus the locator operis, or letter-out of the work, is also conductor operarum, or hirer of the labor and services ; and the conductor operis, or hirer of the work, is also locator operarum, or the letter- out of the labor and services, (d) When chattels are delivered to a warehouseman or storekeeper to be taken care of or kept for hire, the contract is a contract for the letting and hiring of care and custody, termed locatio operis et custodi^. Of the Distinction bet-wreen Contracts for Work and Services and Contracts of Sale. — There is a great analogy between con- tracts for working up materials and the contract of sale; for if the materials for the work, as well as the work itself, have been furnished by the workman, then the contract is in gen- eral a contract of sale ; while, on the other hand, if the em- ployer has furnished the materials, and the undertaker of the work contributes his labor merely, the contract is a contract of letting and hiring of labor {post. Contracts for Sale). If the groundwork of the labor or the principal material entering into its composition has been provided by the employer, the contract is a contract for the letting and hiring of work, although the undertaker of the work may have furnished the accessorial materials necessary for its completion. If a man, for instance, sends his own cloth to a tailor to be made into a coat, and the tailor furnishes the buttons, the thread, and the trimmings, the contract is nevertheless a letting and hiring of work, and not a contract of buying and selling (c) In the case of works of art, the work and skiU of the workman constitute, in general, the essence of the contract, the materials being merely accessorial ; and whenever the skill and labor are of the highest description, (d) " Sed dicendum est in hac specie duotor operis idem sit operae locator, et locationis diverso respectu eundem et locator operis idem operae conductor." locatorem et conductorem videri. Nam — Vin. Com. lib. 3, tit. 25, p. 758; Poth. qui operam locare dicitur, ille idem dici- Louage, No. 392. turconducere opus faciendum ;et ex con- (e) PotMer, Louage d'ouvrage, No. trario qui operam dicitur conrlucere, idem 394. dicitur locare aliquid faciendum ; ut con- 563 * 384 COXTKACTS FOE SERVICES. [BOOK 11. and the materials of small comparative value, the con- [*384] tract is a contract for work, labor, and * materials, and not a contract of sale. (/) A contract, for example, for the printing of a book is a contract for the letting and hiring of work and services, although the printer supplies both the paper and the ink, and not a contract of sale, (jf) But a contract by a dentist to make a set of artificial teeth, to fit the mouth of the employer, is a contract for the sale of a chattel and not a contract for work and labor. (A) When a contract has been entered into for the building of a house on the land of the employer, and the builder furnishes the timber, stone, and materials for the con- struction of the building, the contract is not a contract of sale, although it appears as if the builder sold the materials, but a contract of letting and hiring, because the land which is the principal material for the labor, and to which the building is merely an accessory, has been provided by the employer, {i) If, indeed, the builder is, by the contract, to provide the ground as well as the accessorial materials for the house, then the contract is a contract of purchase and sale. Executory and Executed Contracts for Work. — Contracts for work and services, like all other contracts of letting and hiring, are perfected by the bare consent of the parties, so that as soon as the mutual promises are exchanged the right to the benefit of the work passes to the workman or hirer of the job, and the right to the labor to the employer or letter of the work, {k) If a mutual misunderstanding has arisen without any fault or want of good faith on either side, as if the workman has mistaken the meaning of the employer, and made one thing when another was ordered, the contract is void, as no valid and effectual consent to bind the parties has ever been given. If there is no mutual engagement between the parties for the one to do the work and the other to provide it and pay for its e.x'ecution, there is, as we have before seen, no binding contract at all, unless the engage- ment is under seal {ante, pp. * 12, 13). The workman in such a (/) See, however, the remarks of (h) Lee v. Griffin, suxira. Crompton, J., and Blackburn, J., in (i) Dig. lib. 19, tit. 2, lex 22, sect. 2. Lee V. Griffin, 1 B. & S. 278. {Ic) Lara v. Gen. Apoth. Co., 26 L. J. (g) Clay v. Yates, 1 H. & N. 73; 25 Ex. 225; ante, p. * 5. L. J. Ex. 237. 564 CHAP. II.] WORK AND LABOR. * 385 case is not bound to enter upon his task ; nor is the other party bound to provide the work and pay the hire. But when the work has been actually done, the person at whose request and by whose orders it was executed must pay for it, although the workman was originally under no legal obligation to do the work, nor the employer to employ him. The law generally implies a promise from the employer to pay a reasonable com- peusation for services rendered, unless it appears that the services were to be gratuitous, or that * the work- [ * 385 ] man relied for payment upon a particular fund, and not upon the personal responsibility of the employer. (I) When a person has, by fraud, induced another to perform a service for him, intending not to pay for the performance of it, still there is a liability implied by the law, which may be enforced in the same way as an obligation arising out of an express contract, (to) Work Emd Services in preserving a Lost Chattel, and restor- ing it to the Owner.i — Doubts have at different times been expressed as to whether a person who has voluntarily bestowed his own labor and services and incurred expense in the recovery and restoration of a lost chattel to the owner, is entitled to an action to recover compensation and remuneration therefor, (w) In the case of the recovery and restoration of shipwrecked prop- erty he is clearly entitled to such a compensation ; and there seems to be no valid reason for confining this right of reward to cases of salvage from shipwreck. " In the French law," observes Domat, " he who receives back a thing which he had lost is obliged, on his part, to reimburse 1 As to right of action for a reward offered for finding and returning a lost chattel, upon performance of the service, see ante, p. * 24, American note. That the finder's title to the thing found is good against all persons but the true owner or those claiming under him, see' Durfee v. Jones, 11 R. I. 588; Hamaker V. Blanchard, 90 Pa. St. 377; Bowen v. Sullivan, 62 Ind. 281. When converting a chattel found to his own use is larceny in the finder. Griggs V. State, 58 Ala. 425, Brooks v. State, 35 Ohio St. 36; Bailey v. State, 58 Ala. 414; State v. Dean, 49 Iowa, 73. (l) Ante, p. *21; Boucher v. Nor- (m) Eumsey v. N. E. Ey. Co., 14 man, 3 B. & C. 744; Parke, B., Higgins C. B. N. s. 641 ; 32 L. J. C. P. 244. V. Hopkins, 3 Exch. 166; Hingeston v. (n) Lampleigh v. Braithwaite, 1 Kelly, 18 L. J. Ex. 360; Alexander v. Smith's L. C. 5th ed., 135. Wormap, 6 H. & N. 100; 30 L. J. Ex. 198. 565 *386 CONTRACTS FOE SERVICES. [BOOK II. the finder the expenses incurred by him in the preservation and restoration of the thing lost, such as the expense of feeding a strayed beast vs^hich required nourishment, or the carriage and conveyance of the thing lost to some place of safety, or the ex- pense of advertisements, or the publication of printed notices in order to give information to the owner.'' (o) If the owner is present and cognizant of the exertions made to recover his lost property, it will be a question of fact whether there was or was not an implied request on his part for the performance of the service actually rendered, and a tacit understanding between the parties that the person doing the work should be rewarded for his pains. Salvage Services. — In order to encourage persons to lend their aid and assistance for the protection and preservation of property and life from shipwreck, the law gives to the parties by whose labor and assistance the property or lives have been saved from impending peril, a claim to a fair and reasonable compen- sation for their services, and a right to retain the property until they have received it. {p) This compensation is called salvage, a term derived from the French word salver, or sauver, to save. The amount of salvage payable in the case of the re- [*386] covery of property lost by * shipwreck or abandoned at sea (2) depends upon the value of the thing saved, the degree of danger of loss, and the amount of labor and skill em- ployed in saving it. Some maritime codes have proportioned the amount to the value of the thing saved, without reference to the surrounding circumstances of the case ; but this is obviously unjust ; and our own law, therefore, merely directs as a general principle that a fair and reasonable compensation shall be made, (r) If the salvors are guilty of misconduct, and occasion injury to the ship and cargo by rescuing the vessel from one danger only to run her into another, the claim for salvage will be lost, (s) But if success is finally obtained, no mere mistake or (0) Domat, liv. 2, tit. 9, sect 2, No. Adm. 25; The Phantom, L. E. 1 Adm. 2; Dig. lib. 47, tit. 2, lex 43, sect. 8. 58. (p) Hartfort D. Jones, 1 Raym. 393; (if) The Genessee, 12 Jur. 401. Salk. 654, pi. 2; 17 & 18 Vict. c. 104, (r) The Otto Hermann, ?,o L. .J. sects. 458-470; 24 Vict. c. 10, sect. 9; Adm. 189; The Thomas Fielden, 32 L. 25 & 26 Vict. c. 63, sect. 59; The Fusi- J. Adm. 61. lier, 2 Moo. P. 0. N. s. 51; 34 L. J. (s) The Dosseitei, 10 Jur. 865. 566 CHAP. U.] WORK AND LABOR. * 387 error of judgment in the manner of procuring it, and no miscon- duct short of that which is wilful and may be considered crim- inal on the part of the salvors, will work an entire forfeiture of the salvage. Mistake or misconduct, not wilful but diminishing the value of the property salved or occasioning expense to the owners, will, however, be considered in estimating the amount of compensation to be awarded, (f) There can be no claim to sal- vage where the efforts to salve have not been attended with suc- cess, (u) A man cannot entitle himself to salvage in respect of services which have been rendered contrary to the express wishes and directions of the owner, and has no right to interfere with persons employed by the owner to save the property, (x) And if one set of men have taken possession of a vessel aban- doned at sea and are endeavoring to preserve it, another set have no right to molest them and become participators in the salvage, unless it appears that the first would not have been able to effect the purpose without the aid of the others, (y) A passenger is not entitled to claim salvage in respect of that ordinary assist- ance to a vessel in distress which it is the interest of all persons on board to give, for the purpose of avoiding the common dan- ger, {z) But for extraordinary services rendered and dangers incurred for the preservation of the vessel, the passenger is as much entitled to salvage as a mere stranger, (a) And salvage service may be performed even by the seamen of the ship salved, when an abandonment of her has put an end to their original contract, (b) So also salvage services may be rendered by a pilot where they have put off to sea to help a vessel, the test not * being whether the vessel was at the time of succor [*387] in distress or damaged, but whether the pilot could be expected to incur the risk for only pilotage reward, (c) Where both ships belong to the same owner, the master and crew of the (t) The Atlas, 15 Moo. P. C. 329. (a) Newman u. Walters, 3 B. & P. (m) The Edward Hawkins, 31 L. J. 612. Adm. 46; The Atlas, 31 L. J. Adm. {b) The Vrede, 30 L. J. Adm. 209; 210. But if men are engaged by a ship The Le Jouet, L. E. 3 A. & E. 556; 41 in distress, it is otherwise ; see The L. J. Adm. 95. Undaunted, Lush. 90. (c) Akerbloom v. Price, 7 Q. B. D. (.c) Sutton V. Buck, 2 Taunt. 312. 129 ; see The Anders Knape, L. K., 4 (y) Abbott, 495. P. D. 213. (z) The Branston, 2 Hag. 3; The Vrede, 1 Lush. 322; 30 L. J. Adm. 209. 567 *387 CONTRACTS FOR SERVICES. [BOOK II. ship which has performed the services are entitled to salvage, provided the services performed are not within the contract which they originally entered into with the owners, {d) And the owners of a salving vessel are entitled to remuneration, al- though some of them are also owners of the vessel which did the mischief (e) An agreement for salvage which i"s reasonable at the time it is made, is valid, notwithstanding circumstances may render the services more expensive or hazardous than was anticipated, (ee) By the 17 & 18 Vict. c. 104, sect. 182, every stipulation by which any seaman consents to abandon any right which he may have or obtain in the nature of salvage, is wholly inoperative ; (/) but by the 25 & 26 Vict. c. 63, sect. 18, this is not to apply to the case of any agreement made by the sea- men belonging to any ship which by the terms of the agree- ment is to be employed on salvage service. Compulsion or fraud will avoid a contract as to salvage, (ff) Persons who merely furnish boats, tackle, or other articles of use for salvage pur- poses, are not entitled to be paid as salvors, but for the use of the articles they have supplied, (g) There is no distinction between river salvage and sea salvage, the danger and meri- torious nature of the services in either case being the ground on which the compensation is awarded, (h) Services by Trustees. — The law raises no implied promise of remuneration in respect of services of a fiduciary character, (t) If, therefore, a solicitor consents to act as a trustee of property, and renders professional services in matters relating to the trust estate confided to him, he is not entitled to charge for such services, whether he acts for himself alone, being sole trustee, or for himself and others who are his co-trustees, unless there is a provision in the deed or will creating the trust enabling him to (d) The Sappho, L. R. 3 P. C. 690 ; apportionment; see The Afrika, L. E. 5 40 L. J. P. C. 48; The Scout, L. R. 3 A. P. D. 192. & E. .512; 41 L. J. Adm. 42. (/) The Medina, L. R. 2 P. D. (c) The Glengabeer, L. R. 3 A. & E. 5 C. A. 534; 41 L. J. Adm. 84. ((/) The Charlotte, 12 Jur. 568. {ee) The Waverley, 40 L. J. Adm. (h) The Carrier Dove, 2 Moo. P. C. 42. N.s. 243; and see Nicholson v. Chap- (/) The Rosario, L. R. 2 P. D. 41. man, 2 H. Bl. 258. Seamen may, however, arrange for an (i) Barrett d. Hartley, L. R. 2 Eq. 789. 568 CHAP. II.] ■ WOKK AND LABOR. * 388 receive remuneration for the transaction of such business; but he is entitled to charge the trust estate with costs out of pocket, {k) A trustee moreover, is not allowed to make the execution of the trust a source of profit * to himself, [ *388 ] and cannot sue upon an express contract between him and his co-trustees for payment for his services to the trust ; for each trustee is to be a check and control upon each and all the co-trustees ; and one of them cannot authorize another to make professional charges to be paid out of the trust fund. Where, therefore, a number of trustees appointed one of their own body, who was a lawyer, " factor to the trust," with an allowance for his necessary charges and expenses and a " reasonable gratification," and the factor sued his co-trustees for his professional charges " by reason of their having employed him as their commissioner, factor, cashier, and attorney in the aforesaid trust," it was held that he was not entitled to recover these charges either from them or from the trust estate. (I) Where one of several solicitors in partnership has taken upon himself the of&ce of trustee, the firm of which he is a member cannot charge for professional services rendered by them in the execution of the trust, (m) In a recent case where it was proved that the partner of a trustee had, as solicitor to the trust, transacted the whole trust business entirely on his own account and for his own exclusive benefit, under an arrangement which had been made between him and his partner, that they should not be partners in any matters relating to the trust property, but that the partner who was not a trustee should, in all matters relating to the trust, act as sole solicitor to the trust, and be entitled to receive, for his own exclusive benefit, all costs and charges which might be incurred in the execution of the trust, the professional charges of the partner were allowed to be paid out of the trust estate, (n) Promises of Presents in . Return for Services. — If services have been rendered and benefits conferred on the express under- (yfc) Moore 1). Frowd, 3 Myl. & Cr. 45; supra; Aberdeen Ey. Co. v. Blaikie, 1 Christophers v. White, 10 Bear. 523; Macq. H. L. C. 461; ^josi!, * 825. Manson v. Baillie, 2 Maeq. H. L. C. 80, (m) Collins ■». Carey, 2 Beav. 128; oTerruling Cradock v. Piper, 1 Mac. & Broughton v. Broughton, 5 De G. M. & Gord. 664. Gf- 160. (I) Manson v. Baillie, 2 Macq. H. L. (n) Clack v. Carion, 30 L. J. Ch. C. 80, quea.tioning Cradock v. Piper, 639. 569 * 389 CONTRACTS FOE SEKVICES. [BOOK II. standing that the person rendering the services is to trust entirely to the generosity of the party benefited, and not to looli for payment as a right, there is no contract, (o) But if a person promises to make a present in return for services ren- dered, there is evidence of a contract to pay a reasonable sum. {p ) Honorary and Gratuitous Services. — If the employment is by custom and usage of a purely honorary and gratuitous char- acter, the prima facie presumption of a letting and hiring of the services is rebutted as soon as the custom is proved [* 389 ] and established. The * office of an arbitrator is deemed to be an honorary office ; and a person who acts as such cannot charge for his services, unless it appears from the terms of the submission or the surrounding circumstances of the trans- action that it was the intention of tlie parties that the arbitrator should be paid for his time and trouble, or unless there is an express promise to pay him for his services, {q) Barristers like- wise exercise an office and profession of an honorary character. They are presumed in law not to afford their professional services with any mercenary view, and cannot, therefore, maintain an action for remuneration for advice or advocacy in matter of liti- gation, or for services ancillary to the service of an advocate, although there be an express contract to pay them a stipulated sum for such service ; (r) but in cases unconnected with advo- cacy, and for services not of a professional character, a barrister may, it seems, contract for remuneration. A physician may sue for his services, if he is registered as a physician under the Medical Act, and is not prohibited by the college to which he belongs from bringing an action for his charges, (s) If the service appears to have been rendered as a gratuitous act of (o) Eobeitst). Smith, 4 H. & X. 321; 1.",.'?; Hobart v. Butler, 9 Ir. C. L. K. 28 L. J. Ex. 164; Taylor i". Brewer, 1 \^1 ; Morris v. Hunt, 1 Chitt. 551; M. & S. 190. Veitch r. Eussell, 3 Q. B. 928; Egan v. (p) Jewry v. Busk, 5 Taunt. 302; Guaril. Kens. Un., ib. 935, n.; Attv.- Bryant v. Flight, 5 M. & W. 114; Bird Gen. v. The Royal College of Physicians V. M'Gaheg, 2 C. & K. 708. 1 Johns. & H. 561, 591; 30 L. J. Ch. {q) Virany v. 'Wame, 4 Esp. 47; 757: Mostyn v. Mostyn, L. R. 5 Ch. Hoggins B. Gordon, 3 Q. B. 471. 457; 39 L. J. Ch. 780. (/■) Kennedy v. Broun, 13 C. B. n. s. (s) 21 &22 Vict. c. 90, sect. 31; Gib- 677; 32 L. J. C. P. 137; Broun v. Ken- bon v. Budd, 2 H. & C. 92; 32 L. J. E.x. nedy, 33 L. J, Ch. 71, 342; 33 Beay. 182. 570 CHAP. II.] WORK AND LABOR. * 390 kindness, or in discharge of a public duty, the prima facie pre- sumption of a contract of letting and hiring is repelled. Thus if a man undertakes a journey to become bail for his friend, {t) or attends as a witness in a court of justice, he is not entitled to be paid for his trouble. In the last case, as the attendance to give evidence is a duty of a public nature, an express promise to remunerate the witness for so doing is invalid ; but the wit- ness is entitled to compensation according to the scale framed by the judges under the Common Law Procedure Acts, (u) The law raises no implied promise of remuneration in respect of the services of public officers. If by statute or immemorial usage a public officer is entitled to fees for his services he may maintain an action to recover them ; but where a duty is imposed by statute upon a public officer, and no provision is made for the payment of any remuneration, no action can be maintained for the recovery of any remuneration, (x) Rights and Liabilities of Employer and Workman. — A person who employs another by the piece or by the job, or who lets out * task-work to be done for an express or [*390] implied remuneration, is, in general, bound to do everything that is necessary to be done on his part to enable the hirer of the work to execute his engagement and earn the hire or reward. He impliedly undertakes to resort to no mis- representation or concealment calculated to mislead the servant or undertaker of the work and give him a false estimate of the nature and extent of it, to accept the work when completed, and to pay the customary hire, in case no specific rate of remu- neration has been agreed upon. When there is an absolute and unqualified refusal on the part of the employer to permit tlie- workman to perform his ta.sk, or the employer does an act abso- lutely incapacitating himself from performing his part of the engagement, the undertaker of the work has a right, if he has done anything under the contract, to sue immediately, for remu- neration on a quantum meruit if the contract is defeasible, or if not, for compensation for the damage he has sustained in being prevented from earning the stipulated hire, (y) (i;) Reason uWirdnam, 1 C.& P. 4-34. (x) Jones v. Caermarthen (Mayor), (a) Nokes v. Gibbon, 26 L. J. Ch. 8 M. & W. 605. 208. (y) Planche v. CoUium, 1 M. & Sc. 571 * 391 COXTEACTS FOE SERVICES. [BOOK IL Defeasible Contracts for Work and Services. — If a laborer is employed to dig potatoes at so much an acre, or to cut turf at so much a load, or to make excavations of earthwork at so much per cubic foot, the employer may, if there is no determinate term or employment, dispense, at any time, with the future services of the workman, paying him for the work actually done. If a party employs a factor or agent to collect his rents, or transact his business for him, for certain commission or reward, the employ- ment is determinable at the will of the employer, unless it is coupled with an interest, and the party employed is something more than an agent in the transaction. If an agent is employed to sell property on commission, it is competent to the employer, at any time before a sale has been actually effected, to revoke the authority and deprive the agent of the expected commission ; 'j) but if expenses have been incurred by the agent in executing the authority entrusted to him, he will be entitled to recover such expenses from the employer, and also a reasonable com- pensation for any labor or trouble he may have undertaken in endeavoring to execute his cnuimission, unless it appears to have been the understanding of the parties that nothing was to be paid unless the act authorized to be done was fully accom- plished. («) If a commission S.gent employed to sell property has found a purchaser and effected the authorized contract of sale, he will be entitled to his commission, although [*391] *the employer may refuse to fulfil the contract; and if he has found a party willing to buy, and the em- ployer is then unable or unwilling to sell, the agent wiU be entitled to remuneration for his services, (i i Time of Performance. — By the Judicature Act, 1873, sect. 25 (J ), stipulations in contracts as to time or otherwise which would not before the passing of this act have been deemed to be or to have become of the essence of such contracts in a coiut ot equity, shall receive in all courts the same construction and 51; Emmens r. ELL-rton, pr.sf, p. » 464; (a) Mnffatt i\ Laurie, 15 C. B. 5S3 Prickett I. Badger, 1 C. B. x. .s. 304; De Bemardy r. Harding, S Exch. s'2'2 Inchbald v. Western Xeil^Iierrv Coffee Campanari v. Woodbum, 15 C. B. 400 Co., 17 C. B. N. s. 733: 34 L. J. C, P. 24 L. J. C. P. 13. 13. (6) Prickett v. Badger, 1 C. B. x. s. (;) Simpson v. Lamb, 17 C. B. 603; 296. 25 L. J. C. P. 113. CHAP. II.] WORK AND LABOK. * 392 effect as they would have heretofore received in equity. Time is frequently of the essence of the contract as regards the com- mencement of the work ; but not so with regard to its comple- tion. If it is made a positive term of the contract that the work shall be commenced on a day named, the employer may refuse the services of the workman, and decline to employ him, if he does not tender his services or commence the work at the appointed period ; but when the work has been commenced, the completion of it by a day named will not in general be a condi- tion precedent to the workman's right to the stipulated hire. When the materials for the work, for example, have been fur- nished by the employer, and the produce of the labor becomes, consequently, the property of the latter as the work proceeds, the non-performance of the work by an appointed time does not release the employer from his obligation to pay the contract price. He must in such a case perform his part of the engage- ment, and bring a cross-action against the undertaker of the work to recover compensation for any damage he may have sus- tained by reason of the non-completion of the work at the appointed period, (c) If after the time of completion the em- ployer urges the continuance of the work, or encourages the workman to proceed, he waives the condition as to time, {d) Entire Performance of a Contract for Work is often a Condi- tion Precedent to Payment. — Thus, if a coachman agrees to con- vey a passenger from London to York for a certain stipulated remuneration, and carries him only half the distance, he is not entitled to any payment, the precedent act to be performed being entire and indivisible. Where the plaintiff undertook to make " complete " certain dilapidated chandeliers for the sum of £10, and returned them in an incomplete state, it was held that he could not maintain an action for the work actually done, (e) And where an attorney covenanted to pay his clerk 2s. for every quire of paper he copied out, it was held that this was an entire covenant, of which no apportionment could be made pro rata, and that the clerk, * consequently, could not main- [*392] tain an action to recover remuneration for copying out (c) Lucas V. Godwin, 4 Sc. 509. (e) Sinclair r. Bowles, 4 M. & R. 3; \i) Bum V. Miller, 4 Taunt. 748. 9 B. & C. 94. 573 * 392 CONTRACTS FOR SERVICES. [BOOK II. any number of sheets less than a quire. (/) So where the plaintiff offered to cure a flock of sheep and lambs of a disease called the scab, at so much per head for the sheep, and so much for the lambs, and stated that he did not expect to be paid unless he cured all the sheep and lambs ; whereupon the defendant accepted his offer, and agreed to employ him ; and the plaintiff, after he had materially checked the complaint, but before he had cured the whole of the flock, brought his action for the money ; it was held that he was not entitled to recover anything for his pains, {(j) Divisible and Apportionable "Work. — But if the work is in its nature divisible and apportionable, and there is nothing in the terms of the contract which, either by express stipulation or necessary intendment, precludes the plaintiff from recovering in respect of a partial execution of it, the plaintiff may, on per- forming a part only of his engagement, require a corresponding part performance on the part of the defendant. Qi) Thus, where a ship, being damaged at sea, put into a harbor to receive some repairs, and an agreement was made with a shipwright to put her "into thorough repair," but nothing was said as to tlie amount, or time, or mode of payment, and before the repairs were completed the shipwright demanded payment for what he had done, it was held that the contract was not an entire con- tract to do the whole of the repairs and make no demand for payment until they were completed, but that the shipwright might from time to time, in the course of the work, demand pay- ment for what he had done, before proceeding to complete the residue, (t) And if in a contract of this description the defend- ant is deprived by accident of the benefit of the work before it is finished, the workman is not by reason of such accident, deprived of his riglit to remuneration. Q) Building Contracts.^ — If a contract has been entered into to 1 See U. S. Dig. tit. Conlrads, III. V. IX.; Ann. Dig. 1870-1878, tit. Con- tracts, II. IV.; Ann. Dig. 1879, &c., tit. Contracts, II. V. (/■) Needier v. Guest, Aleyn. 9. (i) Roberts v. Haveloek, 3 B. & Ad. (7) Bates V. Hudson, 6 D. & R. 3. 404. (h) Taylor v. Laird, 1 H. & N. 266; (l) Menetone v. Athawes, 3 Burr. 25 L. J. Ex. 329; Button v. Thompson, 1592. L. R. 4 C. P. 330. 574 CHAP.-II.] WORK AND LABOR. * 393 build a house for a specific sum, to be paid on the completion of the building, the contract is entire and indivisible, and the em- ployer is not bound to pay for a half or a quarter of a house ; for the court and jury can have no right to apportion that which the parties themselves have treated as entire. But where a builder engages to build a house, to be paid for his work and labor and the materials supplied by measure and value, or according to the customary rate of remuneration, he is entitled to de- mand payment from time to * time as the work pro- [* 393 ] ceeds. Every builder who contracts for the building of a house impliedly undertakes to furnish everything reasonably necessary for its completion, (m) Where an action was brought by a builder against his employer upon a special contract for, the building of a house for a certain ^ sum, and the builder had omitted to put into the building certain joists according to his contract, it was contended that, as the employer had got the benefit of the house, he was bound to pay what it was fairly worth ; but, per Mansfield, C. J., " The defendant made no such agreement. He says, ' I agree to pay you, if you would build my house in a certain manner, which you have not done.' The plaintiff cannot now be permitted to turn roimd and say, ' I will be paid by a measure and value price instead of the contract price.' " («) If an architect, employed to prepare plans and specifications for a house, and to procure a builder to erect it, takes out the quantities, and represents to a builder that they are correct, and the builder thereupon makes a tender which is accepted, the builder cannot upon these facts alone recover more than the contract price from the emploj^er, although it turns out that the quantities are wrong, and the builder has expended upon the building a much larger amount of material than he contemplated, (o) ■Work to be approved of before Payment — If a tailor under- takes to make me a coat, or a coachbuilder to build me a car- riage, upon the terms that I am not to take and pay for it, if, on inspection, I disapprove of the style and workmanship, I am at liberty to return the coat or the carriage, and refuse payment of (m) Williams v. Fitzmaurice, 3 H. (o) Scrivener v. Pash, L. R. 1 C. P. & N. 844. 715. (») Ellis V. Hatalen, 3 Taunt. 52. 575 * 394 CONTRACTS FOK SERVICES. [BOOK II. the price, if I think fit so to do. But if I engage an artist to work up my own materials, or to paint a ceiling in my house, and I have, consequently, no opportunity or power of returning him the produce of his labor, I cannot make my approval of the work a condition precedent to his right to demand some remu- neration for what he has done, {p) If a contract for the building or repairing of a house provides for the inspection and approval of the work by the employer before payment of the contract price, the employer must be afforded an opportunity of inspec- tion before he can be called upon to pay ; but he cannot, by withholding his approval unreasonably and mala fide, after an opportunity of inspection has been afforded him, deprive the workman of his hire, [q) The employer has, indeed, a [ * 394 ] right in all cases to inspect the work before he pays * for it ; but his approval of a builder's work is by no means essential to the maintenance of an action by the builder. It will always be a question for the jury to determine, whether the employer has acted bona fide, and ought reasonably to have been satisfied with the work done, (r) But where the workman works up his own materials in the manufacture of a chattel, the em- ployer may reserve to himself a right to rescind the contract and reject the chattel, if he finds, on trial or inspection, that it does not suit him, either on the score of workmanship, or of conven- ience or taste, (s) If his acceptance of an engine, or machine, and payment of the contract price, are made dependent upon his approval of the strength and soundness of the workmanship, and he rejects the machine because it does not work well, or does not answer his purpose, and not because it is deficient either in strength or soundness, he will be held responsible for the price, {t) When the Right to receive Payment is made dependent upon the Approval of an Architect or Surveyor, or the production of a (p) Andrews v. Belfielil, 2 C. B. N.s. rendrait cette clanse mille et illusoire.'' 779. — PoTii. Louagc, No. 417. (j) Dallmaii v. King, 5 Sc. .382; (r) Parsons u. Sexton, 4 G. B. 899; " Ces termes, si je suis content de I'ou- 16 L. J. C. P. 184; Hughes v. Lenny, 5 rrage, ne doivent pasetre entendus en ce M. & W. 193. sens, que le locateur puisse etre admis (s) Andrews v. Belfield, 2 C. B. N. s. indlstiuctement, h, dire qu'il n'est pas 779. content de I'ouvrage, pour se dispenser (t) Ripley v. Lordan, 6 Jur. N. s. de payer la gratification promise, ce qui 1078. 576 CHAP. II.] WORK AND LABOR. * 395 certificate that the worlc has been done according to contract, no right can arise which can be enforced until the approval has been given or tlie certificate has been obtained, (u) Work, therefore, which has been done, but not to the satisfaction of the surveyor or architect, cannot be clrarged for ; (v) but if the cer- tificate is fraudulently or corruptly withheld, the court will give relief ; and an action may, in certain cases, be maintained for the malicious, corrupt, or fraudulent withholding of the certificate both against the architect and against the employer, (w) If the certificate is not, by the express terms of the contract, required to be in writing, the architect's approbation, testified by word of mouth, is sufficient.^ (x) Relief against Biased or Corrupt Decisions of Architects and Surveyors. — If an architect's certificate is wrongfully or fraudu- lently withheld, the court will give relief, not only against the parties who are bound to pay, but also against the architect, sur- veyor, or engineer ; and any stipulation in the contract, placing the latter in the position of an arbitrator between the employer and the workman, and making his decision final, and purporting to exclude the jurisdiction of any court with reference to his conduct, will be nugatory and of no effect, (y) If ques- tions arising between the * contractor for works and the [ *395 ] employer are, by the contract, left to the determination of the architect, and the latter has a personal interest unknown to the contractor and adverse to him, (?) or does not act fairly between the parties, or manifests any undue leaning, bias, par- tiality, or corruption, the court will review his decision and interfere to give relief however strenuously the parties may by their contract have endeavored to exclude the jurisdiction, (a) ^ See post, p. * 1189, American note. (w) Scott f. Liverpool Corp., 25 L. J. v. Lee, 3 B. & S. 364; 32 L. J. Q. B. Ch. 230; Morgan v. Bimie, 3 M. & Sc. 75. 76; 9 Bing. 672; Mayor, &c. of Salford (x) Eoberts v. "Watklns, 32 L. J. C. P. V. Ackers, 16 L. J. Ex. 6; Moflfatt v. 291; 14 C. B. N. s. 592. Dickson, 22 ib. C. P. 268; 13 C. B. 543. (y) Scott v. Liv. Corp., 25 L. J. Ch. (v) Dobson V. Hudson, 1 C. B. N. s. 227. 659; 26 L. J. C. P. 153. (s) Kimberley w. Dick, L. R. 13 Eq. {w) Milner v. Field, 5 Exch. 829; 1; 41 L. J. Ch. 38. 20 L. J. Ex. 68; Batterbury v. Vyse, 2 (a) Kemp B.Eose, 1 Giff. 258; Scott v. H. & C. 42; 32 L. J. Ex. 177; Stadhard Liv. Corp., supra; Oi-mes v. Beadel, 2 VOL. I. 37 577 * 396 CONTRACTS FOE SERVICES. [BOOK II. Actions for wrongfully -withholding the Certificate may be maintained both against the architect and the employer, if it can be proved that the builder has fulfilled his contract and done all things necessary to be done by him to entitle him to the certifi- cate, and that the architect had full knowledge tliereof, and nevertheless neglected to certify, in collusion with and by the procurement of the employer. (&) But the employer is not re- sponsible for any misconduct of his architect or surveyor in refusing to certify not brought about by his instrumentality or interference, (c) Effect of the Employer's taking Possession and making Use of the Unfinished "Work. — A landowner who by a building contract provides a site for the erection of a house, and delivers the ground to the builder, does not thereby part with the possession of his land. The builder has the mere temporary custody of it, and may be turned off at any time by the employer. [cT) Where by a building contract it was stipulated that certain houses should be built on the land of the employer for a certain sum by a specified day to the satisfaction of a surveyor, upon whose ap- proval payment was to be made, and the builder became bank- rupt and was unable to complete the houses, and the employer then took possession of them and finished them, it was held that his taking possession of the unfinished houses did not amount to a waiver of the contract or of any of the terms or conditions thereof, and afforded no evidence that he accepted the benefit of the work actually done under an implied contract to pay for it according to measure and value. («) Defective "Work accepted by the Employer. — Whenever the empjloyer has accepted and retains the benefit of work done for him under a special contract, which has been abandoned [*396] or rescinded, * and remains no longer a subsisting con- tract, lie is liable to pay a reasonable remuneration in Giff. 166; 30 L. J. Ch. 1; Tawley v. (c) Clarke v. AVatson, 18 C. B. N. s. Turnbull, 3 Giff. 70; Bliss v. Smith, 34 278; 34 L. J. C. P. 148. Beav. SOS. {d) The Marqui.s Canulen v. Batter- {b) Battcrbury t). Vyse, 2H. &C. 42; bury, 5 V. B. N. s. 508; 7 C. B. N. .s. 32 L. J. Ex. 177; Milner v. Field, 5 878; 28 L. J. C. V. 335. Exdi. 829; 20 L. J. Ex. 68; Scott v. (e) Munro v. Butt, 8 Ell. & Bl. 738; Liv. Corp., 25 L. J. Ch. 230. Euiiger v. Gt. West. Ry. Co., 5 H. L. C. 118. 578 CHAP, n.] WORK AND LABOE. * 396 respect thereof. If the workman undertakes to repair a chattel, the property of the employer, and the new work and materials are so intermixed with the old work, that the one cannot be sep- arated from the other without injury to the chattel, so that the employer must of necessity accept the work, his liability to pay for it, in case it has been negligently and unskilfully executed, depends upon the utility or inutility of the work. If the chattel has been benefited and rendered more valuable by what has been done, the employer must pay the fair value of the workmanship ; if it is in no wise improved, and the work done has been so negli- gently executed as to be worth nothing, the employer cannot be called upon for payment. If the contract is an entire and indi- 4|isible contract for the completion of certain work, such as the contract to " niake complete " the dilapidated chandeliers for the sum of £10 previously mentioned {ante, p. * 391), and the chattel is returned in an unfinished state, the employer may recLuire the undertaker of the work to complete and perfect the article, and refuse payment of the money until it is done. The retention by the employer of his own unfinished chattel does not, in such a case, raise any inference of a waiver of any of the terms or con- ditions of the special contract, or of the entering into a new contract to pay upon a quantum meruit. (/) Substantial Performance of Building Contracts. — When a con- tract has been entered into for the building of a house for a cer- tain sum of money to be paid on the completion of the building in accordance with certain plans and specifications, it is not essential to the maintenance of an action upon the contract that there should be an exact performance of the contract in every minute particular ; for, wherever divers acts and things of differ- ent degrees of importance are to be done on one side in return for a stipulated remuneration on the other, the performance of all the things in every minute particular is not, in general, a condition precedent to the liability to make some remuneration ; but if the contract has been substantially fulfilled, the plaintiff is entitled to maintain an action upon it, {g) the defendant being entitled to such a deduction from the contract price as will (/) Munro v. Butt, 8 Ell. & Bl. 752; (3) Ante, p. * 190. Ellis V. Hamlen, ante, p. * 393. 579 * 397 CONTRACTS FOR SERVICES. [BOOK II. enable him to complete the work in exact accordance with the contract. In every contract for work there is a condition implied by law that the work shall be done in a proper and workmanlike manner ; but this is not a condition going to the essence of the contract. " If it were a condition precedent to the plaintiff's reminieration," observes Tindal, C. J., "a [*397] * little deficiency of any sort would deprive the plain- tiff of all claim for payment ; but under such circum- stances a jury may say what the plaintiff really deserves to have." (/i) A building contract, with all its specifications and details, may be broken to the letter with trifling damage to the employer ; and if performance in every minute particular were made a condition precedent to the builder's right to sue upon the con- tract for work done, "a trifling injury to the one party might occasion the loss of all remuneration to the other for a long and laborious service." {i) But where it appears from the whole tenor of the agreement that the parties thereto intended, the one to insist upon, and the other to submit to, conditions, however unreasonable and oppressive, the court will in such case give effect to them, {j) Where a party engages to do certain work on certain specified terms and in a certain specified manner, but does not perform the work so as to correspond «ith the specification, he is not entitled to recover the price agreed upon in the specification, nor can he recover according to the actual value of the work done, as if there had been no special contract. What the plaintiff is entitled to recover is the price agreed upon in the specification, subject to a deduction ; and the measure of that deduction is the sum which it would take to alter the work to make it correspond with the specification. (A) And the defendant is not, by reason of his having given evidence of such breach of contract on the part of the plaintiff, and obtained a reduction of the agreed price, ac- cording to the difference between the value of the work actually done and that which ought to have been done according to the (h) Lucas V. Godwin, 3 Bing. N". C. (j) Stadhard or Stannard v. Lee, 3 744; 4 So. 509. B. &. ?-. 364; 32 L. J. Q. B. 7.5. (0 Tindal, C. J., Stayers n. Curling, {k) Thornton v. Place, 1 Mood. & 3 Sc. 755. Eob. 218. 580 CHAP. II.] WORK AND LABOR. * 398 contract, precluded from bringing his cross action to I'ecover compensation for any special damage he may have sustained by reason of the non-compliance by the plaintiff with the strict terms of the engagement. (Z) Although the defendant may give evidence of such breach of contract in reduction of damages, he is not bound to do so, but may pay the whole of the contract price, and bring a cross action for damages for the non-perform- ance and defective performance of the work done, (m) Care must be taken to mark the distinction between an action on the special contract itself for the agreed price of the work, and an action upon a bill of exchange or promissory note given by way of payment of the amount. In the former the value of the work only can be recovered ; in the latter * the { * 398 ] party holding biUs given for the price of the work done can recover on them, unless there has been a total failure of the consideration. If the consideration fails partially, as by the in- feriority of the work, the buyer must seek his remedy by a cross action. The contract may be divisible ; but the security is en- tire, (w) Where plans and specifications are prepared and per- sons invited to tender thereupon, there is no implied warranty that the work can be successfully done according to such plans and specifications, (o) Abatement of the Contract Price. — Whenever a contract for work and services on the one side, and payment on the other, has been so far executed as to give rise to a cause of action in respect of the work done, but has not been fully performed, it is competent to the defendant to show, in reduction of the price agreed to be paid, that the subject-matter of the contract is diminished in value by reason of the incomplete and inefficient execution of the work by the plaintiff. Thus, where the plain- tiff agreed to erect a powerful warm-air apparatus in a chapel, and the defendant agreed to pay him the sum of £70 for so doing, and the claim for the money was resisted on the ground that the apparatus was imperfect and did not answer, it was held (l) Post, p. *955; Mondel v. Steel, (n) Tye v. Gwynne, 2 Campb. 347. 8 M. & W. 858; Rigge v. Burbridge, 15 (o) Thorn v. Mayor of London, 1 Ap. M. & "W. 599. Cas. 120. (m) Davis v. Hedges, L. E. 6 Q. B. 687. 581 * 399 CONTRACTS FOE SERVICES. [BOOK II. by Tindal, C.J., that if the apparatus was altogether unfit for, the purpose, and did not at all answer the end for which it was intended, the defendant was not bound to pay for it ; but that if the apparatus was in the main effective, but not quite so com- plete as it ought to have been according to the contract, the action was maintainable for the price, and that the jury might deduct from the full price such a sum as would enable the de- fendant to do that which was required to make it complete and perfectly effective. (|j) Effect of Non-performance of Building Contracts by the Tirae specified. — In the case of a contract to build a house, where the employer furnishes the land, which is the principal material for the work, if tlie house is not built by the time specified in the contract, but is afterward completed, the employer who has got the house, and has had the value of his land increased by its erection thereon, can never be permitted to free himself from his obligation to pay for it by alleging that the work was not done by the time appointed. The stipulation as to time is not, in such a case, " a condition going to the essence of the contract. The parties never could have contemplated that, if the house were not completed by the day named, the builder should have no remuneration ; at all events, if an engagement so un- [*399] reasonable was contemplated, * the parties should have expressed themselves with a precision that could not be mistaken." {q) Penalties for Non-performance of Building Contracts by a Time specified. — Where, by articles of agreement for the altering and repairing of a warehouse for a fixed sum, it was stipulated that, in the event of the work not being fully completed in three months, the builder should " forfeit and pay " to the employer £5 every week he should be engaged in such work beyond the three months, such penalty or forfeiture to be deducted from the amount which might remain owing on the completion of the N^'ork, it was held, in an action brought for extra work, that the employer was entitled to set off the penalty against the price (p) Cutler V. Close, 5 C. & P. 338; Holland, 3 T. R. 590; Maryon v. Carter, Chapel V. Hicke.s, 2 Cr. & M. 214. 4 C. & P. 29.5; Kingdom v. Cox, 2 C. B. iq) Tindal, C. J., Lucas v. Godwin, 661; 15 L. J. C. P. 95. 4 Sc. 509; 3 Bing. N. G. 744; Littler i: 582 CHAP. II.] WORK AND LABOE. * 400 of such extra work, and that he had a double remedy, either to set it off as payment, or to deduct it from the contract price, (r) If performance by the time specified has been prevented by the ordering of extra work, or by the interference of the employer or his agent, the claim to the penalties cannot be enforced, (s) unless there is an express stipulation that they may be. (t) Of the Giving of Security for the Due Performance of the Con- tract. — If security is to be given by the workman for the due performance of his contract, the giving of the security is a condi- tion precedent to any liability on the part of the employer upon the contract, unless the condition has been waived by the work- man's being required to proceed with the work, or the work having been executed, without security, (u) Destruction of 'Work before Payment — Loss of Materials, and Loss of the Price of the Work. — If the contract is entire for the performance of a specific work for a specified sum, so that the performance of the whole of the work bargained for and agreed to be done is a condition precedent to the right to payment for any part of it, the workman will be deprived of all legal right to remuneration if the work is destroyed by accident before it has been completed ; (x) but if the workman is entitled to pay- ment from time to time as the work proceeds, the destruction of the work before its completion will not deprive the work- man of his hire. Thus if the contract is an entire and indi- visible contract for the building of a house for a specific sum to be paid on its completion, and the * edifice is [ * 400 ] destroyed by lightning, fire, or tempest, during the pro- gress of the work, the contractor must stand to the loss, and be himself at the expense of repairing the damage. But if the con- tract price of the building is to be paid by instalments on the completion of certain specified portions of the work, each instal- ment becomes a debt due to the builder as the particular portion (r) Duckworth v. Alison, 1 M. & W. (t) Jones v. St. John's College, L. R. 412; Fletcher v. Dyche, 2 T. R. 32; 6 Q. B. 115. Legge V. Harloek, 12 Q. B. 1015. (u) Roberts u. Brett, 6 C. B. N. s. (s) Westwood V. Secret. Ind., 11 W. 635; Kingston v. Preston, cited 2 Doug. R. 261; 7 L. T. R. u. s. 736; Russell v. 689. Sa Da Bandiera, 13 C. B. K. S.li9; 32 (x) Appleby v. Myers, L. R. 2 C. P. L. J. C. P. 68. 651; 36 L. J. C. P. 331. 583 *400 CONTRACTS FOR SERVICES. [BOOK II. specified is completed ; and if tlie liouse is destroyed by accident, the employer would be bound to pay the instalments then due, but would not be responsible for the intermediate M'ork and labor and materials, (y) In the Eoman law, if a builder was employed to build a house on the land of the employer, and the building was over- thrown by an earthquake, or destroyed by lightning, during the progress of the work, the employer was accountable both for the materials which the undertaker of the work had furnished and for what was due on account of the workmanship, inas- much as the materials and the produce of the labor became the property of the employer as soon as they were fixed on the land ; but if, by an express contract between the parties, the payment of the money was made conditional on the completion and approval of the building, so that nothing was due until the whole of the work had been performed, then the builder lost both the value of his materials and of his workmanship, and was bound to reconstruct the building before he called upon the employer for payment. («) When the contract is entire and indivisible for the manu- facture out of materials furnished by the employer of a par- ticular chattel for a speciiic sum, to be paid on the completion and delivery of the chattel to the employer, and the chattel is destroyed by inevitable accident whilst it remains unfinished in the hands of the workman, the employer must stand to the loss of his materials, and the workman to the loss of the price and value of his labor. Thus, if a printer is employed to print a book at so much per sheet, the price and value of the printing to be paid for on the completion of the work, and before the wliole impression has been worked off and made ready for de- livery, an accidental fire breaks out upon the printer's prem- ises and consumes the work, the employer must stand to the loss of his paper, and the printer to the loss of the price and value of his labor and skill, (a) But if the work has been completed, and the copies have been printed and made ready for (i^) Meiietone v. Athawes, 3 Burr. (z) Dig. lib. 19, tit. 3, lex 59; Dig. 1592; Tripp v. Armitage, 4 M. & "W. lib. 6, tit. 1, lex 39. 699; post, p. * 929. (a) Gillett v. MaMman, 1 Taunt. 140. 584 CHAP. II.] WORK AND LABOR. * 401 delivery, and placed at the disposal of the employer, they remain at his risk ; and if an accidental fire then * breaks [ * 401 ] out and consumes them, he must stand to the loss, and pay the printer liis hire. (&) If a shipwright is employed to repair a ship, the accessorial materials supplied by him for the work become, as we have previously seen, the property of the employer, as soon as tliey are attached to the vessel under repair, upon the principle that omne accessorium sequitur suum j^i'iii'Cipcde ; and if the com- pletion of the work is not made, either by agreement or by custom, a condition precedent to the payment, and the ship is accidentally burnt, the loss of such materials, as well as of the value of the work and labor employed upon them, is the loss of the employer and not of the workman, and the employer, con- sequently, must pay the fair value of the labor and materials, although he cau reap no benefit from what has been done, (c) But where a man contracts to expend materials and labor on buildings belonging to and in the occupation of the employer, to be paid for on completion of the whole, and before completion the buildings are destroyed by accidental fire, the contractor is excused from completing the work, but is not entitled to any compensation for the work already done, which has perished without any default of the employer, (d) Where a contract for the building of a ship vests the general property in the ship in the employer as the materials are put together and fashioned, (e) and the ship is destroyed by fire, the loss of the materials and workmanship will fall on the employer ; but if the property in the thing destroyed remains with the ■workman, the loss will fall upon the latter. Deviations from Building Contracts — Extras. — If work has been agreed to be done, and materials supplied, under a building contract for certain estimated prices, and there has subsequently been a deviation from the original plan by consent of the par- ties, the contract and estimate are not on that account excluded, but are to be the rule of payment, as far as the contract can be (J) Aillard v. Booth, 7 C. & P. (d) Appleby v. Myer.s, L. K. 2 C. P. 108. 651; 36 L.J. C. P. 331. (c) Menetone v. Athawes, 3 Buit. (e) Clarke v. Spence, post, p. *930; 1592. Wood V. Bell, 25 L. J. Q. B. 153, 321. 585 * 402 CONTEACTS FOE SEEVICES. [BOOK II. traced to have been followed, and the excess only is to be paid for according to the usual rates of charging; but if the original plan has been so entirely abandoned that it is impossible to trace the contract, and to say to what part of it the work shall be applied, the workman may charge for the whole work by measure and value, as if no contract at all had ever been made. But there must be a total deviation, so that the terms of the original contract are not applicable to the new work. (/) [*402] For all work done beyond the * contract, under sub- sequent or antecedent directions, the plaintiff may re- cover, just as if no special contract had ever been made, (g) But the mere fact of the defendant having assented to certain alterations is not sufficient to make him liable to pay for them as extras not covered by the contract, unless the alterations are of such a nature that he cannot fail to be aware that they must increase the expense, and cannot be done for the contract price, (h) If exti'as have been done by the plaintiff without any authority from the defendant, the latter is not bound to pay for them, (i) If they are to be done only on the direction in writing of the architect, a direction in writing must be obtained, (k) In cases of variation set up by way of defence, the courts look to the subsequent conduct of the parties, for this obvious reason, that, as the parties intend the contract to remain in force, so far as it is not varied, it is only by comparing the conduct of the parties subsequently to the making of tlie alleged variation with the terms originally agreed upon that the court can determine with certainty upon oral evidence that such variations were mutually intended to take effect. Prevention of Performance of Building Contracts. — Wliere an agreement was entered into between the plaintiff and defend- ant that the plaintiff should pull down the walls of three houses and erect for the defendant, on the site thereof, a malt- house and other buildings, and the plaintiff was ready and (/) Pepper v. Burland, Peakc, 139; (h) Lovelock v. King, 1 Mood. & Eobson v. Godfrey, Holt, N. P. 0. 236; Rob. 60. Ellis V. Hamlen, 3 Taunt. 52. (i) Dobson v. Hud.son, 1 C. B. N. s. (g) Thornton v. Place, 1 Mood. & 6.59; 26 L. J. C. P. 153. Eob. 219; Fletcher v. Gillespie, 3 Bing. (k) Myers v. Sari, 30 I,. J. Q. B. 9; 637. Enssell v. Sa Da Bandiera, 13 C. B. N. s. 586 149; 32 L. J, C. P. 08. CHAP. II.] WORK AND LABOE. * 403 offered to do the work, but the defendant prevented him, it was held that the plaintiff had done all that was necessary to be done to enable him to sue the defendant for a breach of con- tract. (Z) The builder or workman is not in such a case entitled to recover the full stipulated remuneration as if the buildings had been actually erected. A fair deduction must be made from the contract price in respect of the value of materials which have never been supplied and wages which have never been paid ; and the damages must be confined to the actual pecuniary loss sustained by the plaintiff, (in) Of the Right of Lien of Workmen and Artificers.^ — Every workman to whom a chattel has been delivered by the owner to be mended, repaired, or altered for hire, and who has bestowed his labor upon it, has a lien upon the chattel for his hire. This right of lien is a mere right of retainer until the pecuniary* claim has been satisfied, and carries [*403] with it no right of sale, (n) A workman who has detained a chattel in the exercise of a right of lien is not entitled, in the absence of any usage of trade, to charge ware- house rent or the expense of keeping the chattel, (o) Wherever a workman has bestowed work and labor or skill in repairing or improving a chattel at the request, or by the employ- ment, of the owner, he has a lien upon it for a fair and reason- able renmneration, or for the contract price, if a price has been fixed by agreement, (p) Thus the artificer to whom goods are 1 Upon the mechanic's lien laws of New York and other States, see Houck on the Mechanic's Lien Law (1867); Nott on the Mechanic's Lien Laws of New York (1854); Phillips on Mechanic's Liens (1874); Kneeland on Mechanic's Liens (2d ed. 1882); Hoyton Mechanic's Liens (1882). U. S. Dig. tit. Medw.nics Lien, U. S. Ann. Dig. 1870-1878, tit. Mechanic's Lien, ib. 1879, &c., tit. Lien, II. a. On common law and equitahle liens of artisans, see article on Mechanic's Lien on Personal Property by .1. H. Vance, 21 Am. L. Eeg. N. s. 151; ib. 209; Herries V. Norvell, 17 Am. L. Keg. n. s. 97, and note, ib. 101; Mclntyre v. Carver, 2 Watts & S. 392, 37 Am. Dec. 519, and note by A. 0. Freeman, ib. 522. (Z) Peters v. Opie, 1 Ventr. 177; 2 (n) Thames Iron "Works, &c. v. Pat- Saund. 350; Collins v. Price, 5 Bing. ent Derrick Co., 29 L.J. Ch. 714. 132; Ferry v. Williams, 8 Taunt. 70; 1 (o) Somes v. Brit. Emp. &c., 30 L. J. Moore, 498. Q. B. 229; 28 ib. 221; E. B. & E. 353; (m) Masterton u. Mayor, &c., of 8 H. L. Cas. 338. Brooketyre, 7 Hill. N. Y. Kep. 61. (p) Chase v. Westmore, 5 M. & S. 183. 587 * 404 CONTRACTS FOR SERVICES. [BOOK II. delivered to be worked up, the shipwright to whom a vessel has been delivered to be repaired, (q) the printer to whom paper has been delivered to be printed, (r) the miller who has ground corn or meal at his mill, (s) the horsebreaker or trainer by whose skill a horse is trained and rendered manageable, {t) the stallion- keeper who has received a mare to be covered by his stallion, have each a lien for their hire, or the customary charges for their services, unless there be some express or tacit understand- ing between the parties to the particular contract inconsistent with the exercise of such a right. But where no work is to be done upon the chattel to improve or increase its value, or to carry it from one place to another for hire, no lien attaches upon it. Thus if a power of attorney, or an authority to receive money, is intrusted to a bailee in order that he may exhibit it as a voucher, he has no lien upon the document for money due to him from the bailor. Where a mortgage deed was delivered to an auctioneer in order that he might obtain payment of the prin- cipal and interest due thereon, and the auctioneer made several applications for the money, it was held that he had no lien upon the deed for his charges, (m) The lien of the manufacturer and workman extends only to the principal chattels placed in his hands to be worked up, and not to the accessorial materials which may have been furnished by the employer, and left upon the premises of the manufacturer or workman unused. Thus where oil, madder, dyewood, and fustic were furnished to scribblers and fullers by a person who sent them cloth to be scribbled and fulled and dyed upon their premises, it was held that the lien of the scribblers and [*404] fullers was confined to * the cloth, and did not extend to the oil, &c., furnished by the employers, and left upon the premises after the scribbling and fulling had been com- pleted, (x) And where a stereotype printer received stereotype plates from his employer to print from, it was held that his lien (?) Franklin v. Hosier, 4 B. & Aid. (0 Beavan v. Waters, 3 C. & P. 520; 341; Williaraa u Allsup, 10 C. B. N. s. Jacobs v. Latour, 2 M. & P. 201; 5 417; 30 Law J. C. P. 353. As to a mari- Bing. 130; Scarfe v. Morgan, 4 M. & W. time lien, see The Two Ellens, L. R. 3 284. Adm. & Eccl. 345; ib. 4 P. C. 161. („) Sanderson c. Bell, 2 Cr. & M. (r) Blake v. Nicholson, 3 M. & S. 167. 304. (s) Chase t). Westmore, 5 M. & S. 180. (.r) Cumpston v. Heigh, 2 Sc 684 588 CHAP. II.J WORK AND LABOR. * 404 for printing was confined to the paper, and did not extend to the plates from which he printed. But such a lien may be established by custom and the usage of trade, or by agreement of the parties, {y) Liabilities of Task-workmen. — Every person who has entered into a contract for the performance of a particular task or job is bound to enter upon his employment without delay, to be active, industrious, careful, and diligent in the performance of the work ; to do it according to orders given and assented to; («) to complete it within a reasonable period, if no precise time has been agreed upon for its fulfilment ; and to exej-cise a reasonable amount of care and skill in its execution. If the work is to be performed under the direction of a surveyor to be appointed by the employer, the appointment of such surveyor is a condition precedent to the liability of the workman to commence his task ; and if the sur- veyor is not appointed within a reasonable period, the workman is released from his engagement to do the work, {a) In ordinary cases, the workman may accomplish the work through the medium of inferior agents and workmen ; but if the work is a work of art and geniu.s, and the contract is founded upon the per- sonal talent and capacity of tlie artist, he impliedly undertakes to perform the work himself, and may not intrust it to an inferior agent of less skill and reputation. (I) Of the Implied Obligation to do the 'Work well — Skilled Workmen. — Every person who professes to be a skilled work- man impliedly undertakes to do his work well and in a work- manlike manner, and according to the rules and principles of his trade or art. " When a person is employed in a work of skill, the employer buys both his labor and his judgment ; he ought not to undertake the work if he cannot succeed ; and he should know whether he will or not." (c) The public profession (y) Bleadon u. Hancock, M. & M. sonnel de celuik qui on les donned faire; 465. comme, lorsque j'ai faitmarche avec un (2) StreeteroJ. Horlock, 7Moore, 287. peintre pour peindre un plafond, il ne (a) Coombe v. Greene, 11 M. & W. lui est pas permis de la faire faire par un 483. autre sans mon consentement." — Poth. (b) " Le principe, que le conducteur Louage, No. 421; Robson v. Drummond, peut faire I'ouvrage par un autre, revolt 2 B. & Ad. 308; Britisli Wagon Co. » exception h, I'egard des ouvrages de g^nie Lea, 5 Q. B. D. 149. dans lesquels on considfere le talent per- (c) Bayley, J., Duncan v. Blundell, 589 *405 COXTRACTS FOE SERVICES. [BOOK II. of an art is a representation and undertaking to all who [*405 ] require and make use of the services of *the professed artisan, that the latter is possessed of, and will exercise, the ordinary amount of skill and knowledge incident to his par- ticular craft, art, or profession. (cZ) If, therefore, an accountant is employed to make out an account, and he miscalculates the amounts, and carries wrong balances to the injury of the employer, he is responsible in damages to the latter, (e) If a carpenter undertakes to roof a barn, and employs defective materials, or does his work so negligently and unskilfully that the thatch sinks and lets in the wet, he is liable for the injury to the build- ing so occasioned. (/) Where a carpenter undertook to build a booth on a race-course, and the booth fell down in the middle of the races from bad materials and bad workmanship, it was held that the carpenter was responsible for the damage that had been sustained, {g) The degree of skill and diligence which is re- quired from the workman rises in proportion to the value, the delicacy, and the beauty of the work, and the fragility and brit- tleness of the materials. The Eoman law required the exercise of greater skill and diligence from workmen who undertook the delicate work of raising or removing pillars of granite and por- phyry, than from those who were employed upon common mate- rials ; and greater care from a person who undertook to remove a column, than from a man who was employed in the transport of a rude block of stone, (li) Clockmakers, jewellers, opticians, and all kinds of skilled workmen, and all persons belonging to the learned professions (except barristers), are responsible in damages if they profess to accomplish more than they are able to perform, and undertake works of skill without being possessed of suffi- cient slvill, or apply less than the occasion requires, (i) " Every person," observes Tindal, C. J., " who enters into a learned pro- 3 stark. 7, cited 5 M. & P. 548; " C'est Moneypenny u Hartland, 2 C. & P. 378; lie sa parte une faute de se charger d'ure Pothier (Louage), No. 427; Tr. des chose qui siirpasse ses forces." — Po- Oblig. Ko. 163. THIEE, Louage, 404, No. 525. (gr) Broom u. Davis, 7 East, 480, (d) Harmer v. Cornelius, 5 C. B. N. S. u. (a). 246; 28 L. J. C. P. 85. (h) Dig. lib. 19, tit. 2, lex 25, sect. 7. (c) Story u. Richardson, 8 3c. 291; 6 (i) Scare v. Prentice, 8 East, 352; Bing. N. C. 123. Slater v. Baker, 2 Wils. 359. (/) Basten v. Butter, 7 East, 479; 590 CHAP. II.] WORK AND LABOR. * 406 fession, undertakes to bring to the exercjise of it a reasonable degree of care and skill. Ho does not undertake, if he is an attorney, that at all events you shall gain your cause ; nor does a surgeon impliedly undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill; but he undertakes to bring a fair and competent degree of skill." (k) So a chemist will be liable for negligence in compounding hair wash, by which the plaintiff's wife was injured ; (I) and a patent * agent for negligence in not being aware of a [ * 406 ] legal decision which made an important change in the practice of obtaining patents, (m) Work rendered useless by the Negligence or Incompetence of the Workman.! — Whenever the work contracted to be done is a work of art and skill, and the undertaker, being charged with the bare work, executes it so negligently and unskilfully as to render it utterly useless to the employer, he cannot call upon the latter for payment of it. Thus where a builder contracted with the defendant to rebuild the front of his house, and built it out of the perpendicular, so that it was in danger of falling, and required to be taken down, it was held that tlie builder could not maintain an action in respect of such defective execu- tion of the work. " If there has been no beneficial service," observes Lord Ellenborough, " there shall be no pay." (n) And where a man undertook to erect a stove in a shop, and to lay a tube under the floor which would carry off the smoke, and the plan entirely failed and the stove could not be used, it was held that he was not entitled to an action in respect of his work and labor in the erection of the stove, (o) " If a man contracted with another to build him a house for a certain sum, it would surely not be sufficient for him to show that he had put togetiier such a quantity of brick and timber; he ought to be prepared to show that he had done the stipulated work according to his 1 Negligence of druggist, Thomas v. Winchester, 6 N. Y. 397; discharging artisan for unskilfulness, Leatherberry v. Odell, 7 Fed. Eep. 641. (fc) Lamphier v. Phipos, 8 C. & P. (m) Lee o. Walker, L. E. 7 C. P. 479; Hancke v. Hooper, 7 C. & P. 81. 121. (I) George v. Skivington, L. R. 5 (n) Farnsworth v. Garrard, 1 Campb. Exch. 1. This case is disapproved of in 38; Denew «. Daverell, 3 Campb. 451. Heaven v. Pender, 9 Q. B. D. 302, as (o) Duncan v. Bhindell, 3 Stark. 6; there was no contract with the wife. Hayselden v. Stuff, 5 Ad. & E. 161. 591 - * 407 . CONTRACTS FOR SERVICES. [BOOK II. contract." {p) When a building is so negligently constructed as to be dangerous and unfit for use, the employer may require the builder to take down the structure and rebuild it; and if the builder neglects so to do, and refuses to fulfil his part of the con- tract, the employer may give him notice to remove his materials from off the land, and may resist payment of any portion of the price of the work. If he retains the materials, and makes use of them, he will be bound to pay their fair value ; but if the mate- rials are altogether useless, or the employer has suffered from the breach of contract on the part of the workman more damage and injury than they are worth, he is not bound to pay anything, {q) Useless and Unskilful Professional Services. — If a surgeon requires his patient to undergo an operation which turns out to have been altogether useless or unnecessary, he cannot make it the subject of a pecuniary claim or charge on such patient. If a medical man ignorantly and unskilfully administers improper medicines, and the patient, consequently, derives no [ * 407 ] benefit from * his attendance, the medical man is not entitled to any renmneration for what he has done ; but if he has employed the ordinary amount of skill in his profession, and has applied remedies fitted to the complaint, and calculated to do good in general, he is entitled to his hire and reward, although they may have failed in the particular instance, such failure being then attributable to some peculiarity in the constitution of the patient for which the medical man is not responsible, (r) If a surveyor, engineer, or architect, from negli- gence or want of skill, gives his employers a grossly incorrect estimate of the cost of certain works, and thereby leads them into unnecessary e.-cpenses, he is not entitled to be paid for his plans, estimates, and specifications, (s) But if the incorrectness of the estimate arises from the inherent difficulties in the work itself, the employer will not be relieved from the obligation of payment. If a solicitor conducting a suit is guilty of miscon- duct and negligence, by reason whereof all the previous steps {p) Le Blanc, J., Basten u. Buttre, (r) Kaniien v. McMullen, Peake, 83; 7 East, 484. Hupe v. Phelps, 2 Stavk. 480. iq) Tindal, G. J., Hill v. Feather- (s) Moneypenny v. Hartlaud, 2 C. & stonehaugh, 5 M. & P. 544, 548; Farns- P. 378. worth e. Gerrard, 1 Campb. 38; Pothler, Louage d'ouvrage. No. 434. 692 CHAP. 11^] WORK AND LABOR. _ * 408 taken in the cause become useless, he cannot recover his charges for any part of the business he has done ; but if the suit fails from causes over wjiich the solicitor has no control, the case is otherwise, (t) If a solicitor issues a writ and proceeds thereon in a court of special and peculiar jurisdiction, he is bound to acquaint himself with the machinery and practice of the court, and to see that it is adequate for the purposes of the suit ; and if the suit fails from the ignorance of the solicitor in this respect, he cannot recover his costs and charges of the abor- tive proceedings, (x) If a parliamentary agent employed to obtain an act of parliament draws the clauses of the bill him- self, and frames them so negligently and carelessly that one of the main objects of the statute cannot be accomplished, the negligence may deprive him of all right to remuneration, or it may go merely in reduction of the value of his services, (y) Actions against Solicitors for Negligence.^ — Every solicitor employed by a purchaser of freehold or leasehold property impliedly undertakes to exercise reasonable care and skiU in the investigation of the title of the vendor. If his client has purchased leasehold property under conditions that he is to have no abstract of the vendor's title, and that the lessor's title is not to be objected to, or gone into, this will not exon- erate the solicitor from the duty of investigating the vendor's title so far as to * ascertain that there is a [*408] lease to him creating the interest he professes to sell, and that it has been duly registered where registration is neces- sary, (z) But a solicitor is not liable to an action for negligence 1 Shearman and Eedfield on Negligence (3d ed. with Addenda, 1880); Whar- ton on Negligence (2d ed. 1878); U. S. Dig. tit. Negligence; Weeks on Attorneys and Counsellors (1878), c. 12; liability of attorneys, &c., to clients — negligence- and remedies of clients against attorneys, U. S. Dig. tit. Attorney and Client, II. i; U. S. Ann. Dig. 1870-1878, tit. Attorney and Client, 11.; ib. 1879, &c. tit. Attorney and Client, III. d.; McLelland on Civil Malpractice (1877); U. S. Dig. tit. Physicians ; Savings Bank v. Ward, 100 U. S. 195. (t) Bracey i>. Carter, 12 Ad. & E. (y) Baker v. Milward, 8 Ir. C. L. R. 373; LongD. Orsi, 13 C. B. 615; 26 L. 514. J C. P 127; Stokes v. Truraper, 2 Kay (z) Allen i;.,Clark, 11 W. R. 304. As & ,T. 232; Chapman v. Van Toll, 8 Ell. to the receipt of money for investment & Bl. 396; 27 L. J. Q. B. 1. 'by one of several solicitors in partner- (x) Cox V. Leech, 1 C. B. N. s. 617; ship, see ante, p. *365. 26 L. J. C. P. 125. _„- VOL. I. 38 59ii *408 . CONTRACTS FOE SERVICES. [BOOK II. at the suit of one between whom and himself the relation of solicitor and client does not exist, for giving, in answer to a casual inquiry, erroneous information as to the contents of a deed, (a) A solicitor is liable for the negligence of his agent, (h) part- ner, (c) or clerk, {d) The obligation of the solicitor is towards his client, and not towards a stranger, (e) Yet if he iindertakes without authority to act for any person, he is liable for negli- gence. (/) The solicitor, having accepted the retainer, is in general bound to prosecute the matter intrusted to him to its termination, but not if he cannot obtain his fees or security for them, and he gives reasonable notice of throwing up the retainer, (rf) The retainer is at an end when judgment is recovered, (h) but it may be renewed, (i) A solicitor who has been retained to conduct an action, and who, after judgment in favor of his client, is authorized to do his best for the purpose of obtaining the fruits of the judg- ment, has control over the process of execution so far as such purpose is concerned, and may consent to the withdrawal of a Ji.fa.(k) He may also accept payment of the debt by instalments if it is for the client's advantage to do so, but he has no implied authority to enter into an agreement on his behalf to postpone execution. (I) The solicitor is not liable upon points of new occurrence or (a) Fish V. Kelly, 17 C. B. n. s. (g) M^adsworth v. Marshall, 2 Cr. 19*- & J. 665; Hoby v. Built, 3 B. & Ad. (b) Simons ti. Kose, 31 Bea. 11. 350; Van Saudaii u. Browne, 9 Biiig. (c) Norton v. Cooper, 3 Sm. & GifT. 402. 375; Dundonald v. llasterinan, L. R. 7 (A) Flower v. Bolingbroke, 1 Str. Etj. 504; 38 L. J. Ch. 350; Bickford 1). 639; Brackenbury v. Pell, 12 East, D'Arcy, L. K. 1 E.x. 554; 35 L. J. Ex. 588; Macbeth v. Ellis, 4 Bing. 578; 202. see Horace Smith on Negligence, p. {d) Floyd V. Nangle, 3 Atk. 568; 129. Prestwick v. Poley, 18 C. B. N. s. 806; (i) Butler v. Knight, L. R. 2 E.x. 34 L. J. C. P. 189. 109; 36 L. J. Ex. 66. (e) Fish u. Kelly, 17 C. B. n. s. (k) Godefroy v. Dalton, 6 Bing. 468; 191- Laidler v. Elliot, 3 B. & C. 738. (/) Westaway v. Frost, 17 L. J. Q. (?) Leby v. Abbott, 4 Ex. 588; 19 B. 286; see Horace Smith on Negligence, L. J. Ex. 62. p. 128. 594 CHAP. II.] WORK AND LABOR. * 409 of nice or doubtful construction, (m) but he must show himself acquainted with tlie ordinary practice of his profession, (n) It is the duty of every attorney and solicitor to act with fidelity to his client, and to keep the secrets of the latter ; for " if a man, being intrusted in his profession, deceive him who intrusted him, or if a man retained of counsel become afterward of counsel with the other party in the same cause, or discover the evidence or * secrets of the cause ; or if an [*409] attorney act deceptive, to the prejudice of his client, or make default by collusion with others, whereby his client is injured, an action lies for damages." (o) If an attorney, when his client's deeds are put into his hands for the purpose of rais- ing money, discloses defects of title to the person who was about to lend, and the client sustains damage therefrom, the attorney is responsible for neglect of duty, and cannot shelter himself from the consequences by showing that he was also employed on the part of the proposed lender, and was actuated by a sense of justice towards him ; for whenever an attorney finds that he has a conflicting duty to discharge towards his several clients, he must at once withdraw from the inconsistent employment, and decline to act in the matter. Whenever the attorney has his client's title-deeds put into his hands for any purpose what- ever, " he is to consider his lips sealed with a sacred silence as to the whole of their contents." (^j ) It is also the duty of every attorney, by reason of the emolu- ment he receives for the exercise of his professional skill, to take care that his client does not enter into any covenant or stipula- tion that may expose him to a larger responsibility than the nature of the business he is instructed to transact may, in the ordinary course of practice, require. If the stipulations are more (m) Lovegrove v. White, L. R. 6 C. P. sect. 43 of the Companies Act, see Ex 440. 7Jarfe "Valpy and Chaplin, L. R. 7 Ch. {n) Hunter D. Caldwell, 10 Q. B. 69, App. 289. No agreement between an 83. All the cases of negligence are col- attorney and his client as to the former's lected in the editor's book on Negligence, remuneration made in pursuance of the (o) Com. Dig. Action on the Case for Attorneys and Solicitors Act, 1870 (33 & Deceit, A. 5. As to their duty to keep 34 Vict. c. 23), will absolve such attor- accountg, see Ex parte Neville, L. R. 4 ney from the consequences of his neg- Ch. App. 43. As to their duty to see ligcnce; see sect. 7. that a charge on the property of a com- (p) Tindal, C. J., Taylor v. Black- pany is duly registered, as directed by low, 3 B. N. C. 235. 595 * 410 CONTRxiCTS FOR SERVICES. [BOOK II. onerous in their consequences than usual, the matter should be fully explained to the client, and the unusual extent of liability be made known to him. {q) If an attorney conducting a suit neglects to comply with the practice or orders of the court, and neglects to take some neces- sary step in the cause, by means whereof all the previous pro- ceedings become useless, he wiU be responsible in damages to his client, (r) And the same consequences follow if he brings an action for his client, within a limited jurisdiction, on a cause of action manifestly arising out of tlie jurisdiction, (.s) or negligently suffers judgment to go by default when he is retained to defend an action ; (t) or fails to instruct counsel properly, and to deliver briefs in sufficient time to enable his counsel effectively [*410] to perform the duty *intrusted to him; or if he is not present in person, or by his agent at the trial, to see that the witnesses are forthcoming when called upon. («) When present at the trial, it is the duty of the attorney not to suffer the case to be called on, unless he has previously ascertained that all the necessary witnesses are in attendance ; (aj) but he is not bound to search after his counsel, nor is he answerable for the non-attendance or neglect of the latter, {y) If he has received instructions from his client not to compromise an action he is retained to prosecute, he will be guilty of a breach of duty if he does compromise, and cannot shelter himself from an action by showing that it was done under the advice of counsel, (s) al- though that circumstance might go in reduction of damages. But in the absence of a distinct prohibition to compromise, the general authority of an attorney is sufficient for tliat purpose. («) " It would be extremely difficult," observes Tindal, C. J., " to define the exact amount of skill and diligence which an attorney (q) Stannard v. Ullithome, 4 M. & v. Peale, 3 Taunt. 483; Swannell v. Sc. 376; 10 Biug. 491. KUis, 8 Moore, 340; 1 Bing. 347. (r) Biacpy v. Carter, 12 Ad. & E. (,.) Eeece v. Rigby, 4 B. & Aid. 202. 373; Fraiikland v. Cole, 2 Cr. &.}. 590; (?/) Lowry v. Guildford, 5 C. & P. Pitt V. Yalden, 4 Burr. 2063. 234.' is) ■Williams w. Gibbs, 6 N". & M. (s) Fray v. Voules, 1 El. & El. 839; 788. 28 Law .J. Q. B. 232; Butler v. Knight, (t) Godefroy v. Jay, 5 M. & P. 297; L. E. 2 Excli. 109. 7 Bing. 419. {a) Pristwick v. Foley, 34 L. J. C. P. (u) Hawkins v. Harwood, 4 Exch. 189; Butler i;. Knight, su^^ra. 506; 19 Law J. Exch. 33; De Eoufigny 596 CHAP. II.] WORK AND LABOR. * 411 undertakes to furnish in the conduct of a cause. The cases, how- ever, appear to establish in general that he is liable for tiie con- sequences of ignorance or non-observance of the rules of practice of his court, (i) for the want of care in the preparation of the cause for trial, or of attendance thereon witli his witnesses, and for the mismanagement of so much of the conduct of a cause as is usually and ordinarily allotted to his department of the pro- fession; but he is not answerable for error in judgment upon points of new occurrence, or of nice or doubtful construction, or of such as are usually intrusted to men in the higher branch of the profession of the law, unless he has thought fit to act upon his own judgment and opinion respecting matters which ought to have been laid before counsel." (c) " I think it would be most unfair," said Alderson, B., " if an attorney were to be precluded from recovering his fair remuneration merely because he has made a mistake in an act of parliament." (d) If an attorney is employed to investigate the title to an estate or to seek out an eligible investment, and obtain good security for money advanced, and the title is obviously defective, or the security is manifestly bad or insufficient, the attorney will be responsible *for his negligence both at common [*411 ] law and in equity, (e) But he is not responsible for an advance on a mortgage which turns out a deficient security, if he has taken the opinion of a competent surveyor as to the value of the property. (/) He is not justified in relying upon an extract from a will furnished to him by his client, unless the latter agrees to take the entire responsibility upon himself; but he ought to search for and examine the original will, (g) If he relies upon his own judgment and opinion as to the interpreta- tion and legal operation of deeds and conveyances, he does so at (6) Lee v. Walker, post, Contracts of («) Knight v. Quarles, 4 Moore, 532; Sale. 2 B. & B. 102; Whitehead v. Greetham, (c) Godefroy v. Dalton, 6 Bing. 468; 10 Moore, 183; 2 Bing. 464; Howell v. PurvesD. Landell, 12C1. &Fin. 98; Shil- Young, 5 B. & C. 259; Chapman v. cock V. Passman, 7 C. & P. 292; Kemp v. Chapman, L. E. 9 Eq. Ca. 276. Bnrt, 4 B. & Ad. 431 ; Long u. Orsi, 18 C. (/) Chapman v. Chapman, supra. B. 610; Cox V. Leech, 1 C. B. n. s. 617; As to his duty to get the best price for Ireson v. Pearman, 3 B. & C. 812, 813; the property intrusted to him for sale, Townley v. Jones, 8 C. B. N. s. 289. see Morgan v. Steble, L. E. 7 Q. B. (d) Elkington v. Holland, 9 M. & W. 611. 661; Laidler v. Elliot, 3 B. & C. 738. (g) WQson v. Tucker, 3 Stark. 156. 597 * 412 CONTIUCTS FOR SERVICES. [BOOK II. his peril. If he draws a wrong conclusion from them he will be responsible in damages to his client. He ought, therefore, to lay them before counsel, if he wishes to avoid the responsibility of acting upon his own judgment respecting them. (7i) If when retained by a client who is about to advance his money on the security of a mortgage, he has reason to suspect that the intended mortgagor has been insolvent or in embar- rassed circumstances, he will be responsible for a breach of duty if he neglects to make searches in the proper quarter to ascertain whether such intended mortgagor has ever taken the benefit of the Insolvent Act ; {i) or to make inquiry whether there are any existing incumbrances on the ])roperty. (k) By the Attorneys and Solicitors Act, 1870, (/) agreements may be made between solicitors and their clients with respect to the remuneration of the former ; but, by sect. 7, a provision in any agreement that the solicitor shall not be liable for negligence, or that he shall be relieved from any responsibility to which he would otherwise be subject as such solicitor, is Avholly void. By sect. 8, no action can be brought upon any such agreement, but the agreement may be enforced in the manner indicated in tlie section. It has been held that this section only applies to pre- vent actions to recover sums in lieu of costs after the work is done, and not to an action for refusing to allow a solicitor to do the work, (m) Tlie above statute does not apply to conveyancing or non-contentious business, agreements as to which are regu- lated by the Solicitors' Eerauneration Act, 1881. (n) Negligence of Barristers. — Tliere is no instance of any action having been successfully brought against a barrister [*412] for neglect of * duty ; but if a barrister intentionally does a wrong, and acts with malice, fraud, or treachery in the discharge of his professional duties, he will be respon- sible, like every other wrong-doer, for the mischief thereby occasioned, (o) (A) Ireson v. Pearm.0, 502, 535 ; TJ. S. Dig. tit. {Farehousemen. A warehouseman is not a guarantor of the title of property placed in his cus- tody, although his receipts therefor are by statute negotiable. Insurance Co. v. Kiger, 103 U. S. 352. Where the holder of an invalid warehouse receipt for grain demands possession of the grain and receives the keys of the warehouse, he acquires no lien para- mount to any right of a prior purchaser who holds a valid receipt, though without recorded evidence of his purchase. Sexton v. Graham, 53 Iowa, 181. Though in an action against a warehouseman proof of a demand and refusal to deliver the goods is prinui facie evidence of negligence, yet, in the absence of any showing of bad faith, if the goods appear to have been lost by a burglary, the burden remains on the plaintiff to show that the loss arose from defendant's negligence. Claflin v. Meyer, 75 N. Y. 260. See also on the burden of proof as to negligence, Madan v. Covert, 45 N. Y. Superior Ct. 245 ; Collins v. Bennett, 46 N. Y. 490; Merchants', &c. Transp. Co. v. Story, 50 Md. 4; Boies v. Hartford, &c. E. R. Co., 37 Conn. 272; Brandon u. Gulf City Cotton Press, &c. Co., 51 Tex. 121; Thomas ». Darden, 22 La. Ann. 413; Schwartz 1). Baer, 21 La. Ann. 601; Gayv. Bates, 99 Mass. 263; BaiTon ». Eldredge, 100 Mass. 455. Proof of demand and refusal to deliver the goods casts upon the warehouseman the burden of ex- cusing the non-delivery. Golden v. Eomer, 20 Hun, 438. Compare Leonard v. Dunton, 51 111. 482, and Ives v. Hartley, ib. 520 ; Sessions v. Western R. R. Corp., 16 Gray, 132. Where the owner of property stored in a warehouse intrusts a broker with a delivery order to enable him to sliip the goods to a pretended buyer, and the broker removes the goods, stores them elsewhere in his own name, and sells them to an innocent purchaser for value, the latter acquires no title against the true owner. Collins v. Ralli, 20 Hun, 246. The fact that an adverse claim is made to the property does not entitle a warehouseman to require a bond of indemnity from the true owner as a condition of delivering the property ; the remedy is by an interpleader. Danfield v. Haeger, 7 Abb. N. C. 318 ; s. c. 45 N. Y. Superior Ct. 428. But one who claims as assignee of the original owner without producing the receipt may rightly be required to account for its loss and to give good security to the warehouseman. Patten v. Baggs, 43 Ga. 167. Warehouse receipts made payable to bearer are not negotiable ; they are made negotiable only by written (p) Leek V. Mae.staer, 1 Campb. 137. Richardson, 3 Ell. & Bl. 169; 23 Law J. (q) Ld. Campbell, C. J., Dausey v. Q. B. 228. 604 CHAP. II.] WORK AND LABOE. *416 delivered to be kept for hire and reward, and who are paid expressly and specifically for the exercise of their labor and care in keeping them, and not merely for the finding of a place of deposit, are bound to exercise that amount of care and vigilance for their preservation which the most prudent and careful of men exercise for the protection of their own property, (r) If the indorsement and delivery. Erie, &c. Despatch o. St. Louis, &c. Compress Co., 6 Mo. App. 172. See also Harris v. Bradley, 2 Dill. 284 ; Hale v. Milwaukee Dock Co., 29 Wis. 482; Shepardson v. Gary, ib. 34. If the property forms part of a larger mass, it must be so designated as to distinguish it from the remainder in order to pass the title. Ferguson v. Nortliern Bank, 14 Bush, 555. See also Cochran ii. Eipy, 13 Bush, 495 ; Central Say. Bank v. Garrison, 2 Mo. App. 58 ; Marks u. Cass County Mill, &c. Co., 43 Iowa, 146. The words at the end of a ■warehouse receipt, "subject to their order for all advances of money on the same," do not convert the receipt into a mere pledge so as to render the grain liable to an execution against the party giving it, issued after the date of the receipt. Cool V. Phillips, 66 111. 216. As to the warehouseman's liability for the care of the goods and premises, see, further, Smith v. Frost, 51 Ga. 336; Howell v. Morlan, 78 111. 162; Buckingham V. Fisher, 70 111. 121; Cole v. Favorite, 69 111. 457; State v. Stevenson, 52 Iowa, 701 ; Hamilton v. Elstner, 24 La. Ann. 465 ; Robinson v. Larrabee, 63 Me. 116 ; Aldrich o. Boston, &c. R. R. Co., 100 Mass. 31 ; Schweriu v. McKie, 51 N. Y. 180; Moulton v. Phillips, 10 E. I. 218 ; Vincent v. Rather, 31 Tex. 77. To save the goods from loss by fire he may be in duty bound to violate statutoiy require- ments. Maoklin v. Frazier, 9 Bush, 3. On the liability for losses by fire, see also Irons v. Kentner, 51 Iowa, 88; Hough v. People's Fire Ins. Co., 36 Md. 398; Coleman v. Livingston, 45 How. Pr. 483 ; general duty of warehouseman to con- sult interest of owner of goods in forwarding them, and bribery of warehouseman by carrier, Northrup v. Phillips, 99 111. 449. As to the warehouseman's compensation, see Lehman v. Skelton, 46 Ala. 310 ; Hazeltine v. Weld, 73 N. Y. 156; Rea v. Trotter, 26 Graft. 585. As to delivery, see Matter of Clifford, 2 Sawyer, 428 ; The R. G. Winslow, 4 Biss. 13 ; Hills v. Snell, 104 Mass. 173 ; Parker i;. Lombard, 100 Mass. 405; Col- lins V. Burns, 63 N. Y. 1 ; Coleman v. Livingston, 36 N. Y. Superior Ct. 32 ; Compton V. Shaw, 3 Thomp. & C. 761. As to warehouse receipts, their construction and negotiability, and the rights of the holders thereof, see, further, Dowsii. Ekstrone, 1 McCrary, 434; McNeil v. Hill, Woolw. 96; Nelson v. Brown, 53 Iowa, 555; German Nat. Bank v. Meadowcroft, 4 111. App. 630; Mathe v. N. 0. Sugar-Shed Co., 32 La. Ann. 631; Greenbaum i>. Megibben, 10 Bush, 419, and compare Newcomb v. Cabell, ib. 460; Robson v. Swart, 14 Minn. 371 ; Hazard v. Abel, 15 Abb. Pr. N. s. 413; Wilson v. O'Day, 6 Daly, 354; Willner v. Morrell, 40 N. Y. Superior Ct. 222; Yenni v. McNamee, 45 N." Y. 614 ; Second Nat. Bank v. Walbridge, 19 Ohio St. 419 ; Hale v. Mil- waukee Dock Co., 23 Wis. 276; Price v. Wisconsin Marine, &c. Ins. Co., 43 Wis. 267. (r) "Quod si horrearins nominatim sed etiam raaciMsimos custodise. ^ Pan- oustodiam merciiim in se recepit, vide- dcct. Just, ed. Poth. lib. 19, tit. 2, art. bitur locasse operas non solum exactse, 3, 72. 605 *417 CONTRACTS FOR SERVICES. [BOOK II. goods are injured by mice or rats, the warehouseman will be responsible for the damage, (s) although he keeps cats to destroy vermin, (t) It is no answer to an action against a warehouseman for the non-delivery of a chattel intrusted to him to keep for hire, to say that he has lost it ; («) the mere fact of the loss is prima facie proof of negbgence, and he must rebut this pre- sumption by showing that he had taken the greatest care of the thing intrusted to him, and had no means of preventing the loss. A booking-office keeper who receives money for booking parcels, is bound to put them into a safe place, and if he leaves them in a public room, or an open shop, and they are lost or stolen, he will be responsible to the owner, (x) [ * 417 ] * Loss of Chattels by Wharfmgers.l — The duties and responsibilities of the wharfinger, in respect of the safe keeping of the goods intrusted to him, to be dealt with in the way of his trade, are analogous to those of the warehouseman. If he receives directions to shift them on board a particular vessel, he 1 The rights and liabilities of a whai-finger are in general very similar to those of a warehouseman. See Edwards, Bailments, sects. 356-368 ; Scliouler, Bail- ments, Part IV. c. 2, p. 99 ; Story, Bailments, sects. 451-454, 503 ; U. S. Dig. tit. Wharrrs, sect. 52. As to what constitutes a wharfinger, see Rodgers v. Stophel, 32 Pa. St. 111. A wharfinger is liable for disobeying instructions as to the parties to whom the goods are to be shipped. Howell v. Morlan, 78 111. 162. If he at first refuses, but afterward consents, to deliver goods in his possession to the lawful owner, he is not liable for their destniction while in his possession by a fire occurring without his fault after the owner has had a reasonable time to remove them. Carnes v. ^11:11018, 10 Gray, 369. A mere delivery of goods at the wharf is not enough to charge the wharfinger ■with the custody, but there must be on his part an express or implied consent to receive them. Grosvenor d. New York Central R. R. Co., 39 N. Y. 34; Packard 0. Getmaii, 6 Cow. 757; Mtna. Ins. Co. v. AVhecler, 5 Lans. 480. As to the termination of the bailment, see Gass v. New York, &c. R. R. Co., 99 Mass. 227; Merritt v. Old Colony, &c. Ry. Co., 11 Allen, 83; Western Transp. Co. V. Barber, 56 N. Y. 544; Burton v. Wilkinson, 18 Vt. 186; and see, further, the Francesca T., 9 Ben. 34 and Nelson v. Phrenix Chemical Work.s, 7 Ben. 37. Among recent decisions upon wharves and wharfage generally may be men- tioned the following : Packet Co. v. St. Louis, 100 U. S. 423; Vicksburg v. (s) White v. Humphrey, 11 Q. B. 44. man v. Boycot, 2 B. & S. 1; 31 Law J. it) Laveroni v. Drury, 8 Exch. 166; Q. B. 69. see Kay v. Wheeler, L. R. 2 C. P. 302. (x) Dover v. Mills, 5 C. & P. 175. (w) Cairns r. Robins, 8 M. & W. 258. As to passengers' luggage deposited in Reeve v. Palmer, 5 C. B. N. s. 84; Good- railway-cloak rooms, see ante, p. * 357. 606 CHAP. II.] WOKK AND LABOE. *417 does not discharge his duty by delivering them to one of the crew, but he is bound to place them in the hands of the captain, or some person in authority on board the vessel, (y) If he is clothed merely with the custody of the goods, and the duty of shipping them devolves, by usage and custom, upon the master of the vessel to which they are to be sent, the wharfinger is dis- charged from responsibility as soon as he has placed them at the disposal and under the care of the master and officers of such vessel, although they are not actually removed from the wharf. {£) Loss of Cattle — Liabilities of Agisters of Cattle.^ — A person who receives cattle or horses, or living animals to keep for the owner, and is paid expressly for his care and watchfulness in preserving them, as well as for their sustenance, is bound to take the utmost care of them, and he is responsible for damage and injury resulting from ordinary casualties if such damage might have been averted and prevented by the exercise of great care Tobin, ib. 430; Guy i). Baltimore, ib. 434; The J. H. Starin, 15 Blatchf. 473; The John M. Welch, 9 Ben. 507; Soule u. San Francisco Co., 54 Cal. 241; Chicago, &o. K. R. Co. v. Maher, 91 III. 312; St. Martinsville v. The Mary Lewis, 32 La. Ann. 1293; New Orleans w. Wilmot, 31 La. Ann. 65; Nickerson v. Tirrell, 127 Mas.'i. 236; Breed v. Lynn, 126 Mass. 367; Walsh v. New York, &c. Dock Co., 77 N". Y. 448; Simpson v. Keill, 89 Pa. St. 183. 1 Agisters, like other bailees for hire, are bound to exercise only ordinary care and diligence. Umlauf v. Baassett, 38 111. 96; Halty v. Markel, 44 111. 225; Maynard 11. Buck, 100 Mass. 40; McCarthy d. Wolfe, 40 Mo. 520; Key v. Toney, 24 Mo. 600; Waldo v. Beckwith, 1 New Mex. 97; Eastman v. Patterson, 38 Vt. 146. But in the absence of special agreement or statutory enactment, the agister has no lien upon the animal delivered to him for keeping. McDonald v. Bennett, 45 Iowa, 456; Allen v. Ham, 63 Me. 532; Goodrich v. Wilkrd, 7 Gray, 183; Mauney v. Ingram, 78 N". C. 96; see, also, Whitlock v. Heard, 13 Ala. 776; Leavy u. Kinsella, 39 Conn. 50 ; McCoy v. Hock, 37 Iowa, 436 ; Grinnell v. Cook, 3 Hill (N. Y.), 485; Edwards, Bailments, sect. 331; Story, Bailments, sect. 443. Nor has an ordinary livery-stable keeper any lien, except by statute. Miller v. Marston, 35 Me. 153; Hickman v. Thomas, 16 Ala. 666, and the authorities just cited. Relinquishing possession is generally a waiver of any lien given by statute. Estey v. Cooke, 12 Nev. 276. Upon the old Spanish law of pastures, consult Waldo V. Beckwith, 1 New Mex. 97. {y) Leigh v. Smith, 1 C. & P. 638, Story on Bailments, 293; Jones on Bail- 641 ; 2 Esp. 695. ments, 97. (z) Cobban v. Downe, 5 Esp. 41; 607 *418 CONTRACTS FOR SERVICES. [BOOK II. and vigilance. Very slight evidence of neglect has been sufficient to induce juries to return verdicts in favor of those who have sought compensation for the loss of cattle delivered to bailees to be kept for reward. Thus where the defendant, a farmer, had received the plaintiff's horse to agist for a certain price, and the horse strayed and was lost, and never after heard of, and the plaintiff gave evidence of the gates having been occasionally seen left open, and the fences being in parts out of order, but it did not appear directly that the horse had strayed through any defect in the fences, or through any of the gates being left open, the jury, nevertheless, returned a verdict against the defendant for the full value of the horse, (a) If the bailee suffers his fences to be defective, or puts the horse into a dangerous pasture, and the animal by reason thereof is lost or injured, this is a degree of neg- lect for which he is undoubtedly responsible, (h) Where an agis- ter placed the plaintiff's horse in a field where there were heifers, knowing that a bull was in the habit of getting into the field, though he did not know it was vicious, and the buU gored the horse, it was held that the scienter- was immaterial, as he had con- tracted to take reasonable care, and liad not done so. (c) [*418] * Theft by Servants. — If the subject-matter of the bailment is secretly purloined by the bailee's servant, the bailee will be responsible for the loss, unless he can show that he could not, by the exercise of the greatest vigilance, have guarded against the theft ; but he will not be responsible for a robbery by irresistible violence, (d) Where a chronometer, bailed to a watchmaker to be repaired for hire, was placed by the bailee in a drawer in his shop amongst a variety of common watches, part of which belonged to the bailee, and the rest to his customers, which drawer was locked at night, and in a recess in the same room stood a strong iron chest, in which watches belonging to the watchmaker, of the value of several thousand pounds, were deposited and locked up, and in the night the drawer was broken open by the watchmaker's servant, who slept in the shop, and the chronometer was stolen by him together with the other (a) Broadwater v. Blot, Holt, 547. (c) Smith v. Cooli, L. R. 1 Q. B. D. (i) Mosley v. Fosset, 1 Roll. Abr. i. 79. See Add. on Torts (5th ed. by Cave), (d) Walkers. British Guarantee Ass., p. 358. 21 Law J.Q. B. 260; 18 Q. B. 277. 608 CHAP. II.J WOKK AND LABOR. *419 watches there deposited, but the watches in the iron chest remained untouched, it was held, that as the watchmaker had taken more care of his own watches, by locking them up in the iron safe, than he had taken of the bailor's chronometer, he was responsible for the loss, and Dallas, C. J., was of opinion that the watchmaker " was bound to protect the property against depredation from those who were within the house." (e) Distinction between Robbery and Theft. — A very sensible distinction is taken in the civil law between a public palpable robbery by force and violence, when a house is broken into and robbed of its contents, and a theft or secret purloining of goods. In the one case, the bailee relieved himself from responsibility for the loss by proof of the mere fact of the robbery, (/) it being considered that individual care or vigilance could avail but little against the open attack of the determined robber ; in the other, he was bound to make good the loss, unless he could show that he had taken the greatest care of the thing intrusted to him, and that it had been purloined, notwithstanding every precaution for its safety, (g) Where an officer in the army, on leaving Lon- don, delivered a trunk containing divers articles of value to an upholsterer to be kept for a shilling a week, and the trunk was returned to the officer emptied of its contents, which were sup- posed to have been stolen by the upholsterer's servant, it was held by Lord Kenyon that if the upholsterer had taken as much care of * the articles as lie had taken of his [*419] own property, he was not responsible for the theft com- mitted by his servant ; Qi) but every depositary of chattels to be kept for hire is prima facie responsible for a theft committed by his own servants within the house, (i) and can only discharge himself from liability by showing that the theft was committed («) Clarke v. Earnshaw, Gow, 30. 53; Abbott, C. J., in Eobinsonv. Ward, (/) Dig. lib. 17, tit. 2, lex 52, 53; Ry. & M. 276. Instit. lib. 3, tit. 15, sects. 2, 3. [h) Finucane v. Small, 1 Esp. 315. (g) "Ad casus autem fortuitos non (i) Hodgson v. Fullarton, 4 Taunt, sunt referendi illi casus, qui cum culpa 787; Dallas, C. J., in Clarke v. Eam- conjuncti esse solent; cujusmodi sunt sbaw, Gow, 32; Campbell, C. J., and furta. Quamobrem, qui rem /Mrto amis- Coleridge, J., in Dansey u. Eichardsou, sam dicit, is diligentiam suam probare 3 EU. & Bl. 156-171; 23 Law J. Q. B. debet."— Fin. Com. ad Inst. lib. 3, tit. 223-229; De Rothschild v. Royal Mail, 15, sect. 5; Pothier (Pret h, Usage), art. &c. Co., 7 Exch. 734; 21 Law J. Exch. 273. VOL. I. 39 609 * 419 CONTRACTS FOK SERVICES. [BOOK II. under such circumstances, or was of such a nature, that the greatest care and vigilance on his part could not have guarded against it or prevented it. Losses occasioned by the Negligence of the Bailor. — If the owner himself in any way conduces to the loss ; if he brings people to the warehouse or place of deposit to look at the goods, opens packages in whicli they are contained, &c., and the loss is as likely to have arisen from the misconduct of the persons so introduced, or from the carelessness of the owner, as from the neglect of the warehouseman or bailee, the latter is not respon- sible for the loss. Thus where a quantity of ginseng contained in a box was deposited by the plaintiff in the defendant's ware- house, and the plaintiff was in the habit of resorting to the box, and ordering the lid to be taken off for the purpose of showing the ginseng to expected purchasers who came to the warehouse to view it on the invitation of the plaintiff, and rats at last got into the box and destroyed the ginseng, it was held that the defendant, the warehouseman, vi^as not responsible for the loss, (k) Negligence of Bailors. — It is the duty of every bailor of dangerous, explosive, and combustible substances, knowing the dangerous nature of them, to take care that the danger is com- municated to a bailee to whom they are delivered to carry, to take care of, or to keep ; and if the bailor fails to make the ne- cessary disclosure, he is responsible if an accident occurs, and damages are sustained by the bailee or liis servant. (/) Fraudulent Concealment of the Dangerous Nature of Articles delivered to a Bailee to be warehoused or carried.^ — Every 1 The transportation of explo.sires by railroad.s is subject to some peculiarities, owing to the number and variety of explcsive compounds which have been brought into use during recent years ; also, in the United States, to the peculiar distribution of powers between the Federal and State governments. The increased care and skill required from the carrier, and the great risk involved in the service, are recognized reasons entitling him to make an extra charge; but, to avoid this, shippers are prone to pack explosives without disclosing their dangerous character, and both from wilful concealment and from ignorance of the dangerous character of a new article, the carrier is liable to incur an explosion. See a case which arose when dualin was first introduced (Boston, &c. R. E. Co. v. Carney, 107 Mass. 568), (k) Cailiff V. Danvers, 1 Peake, N. (l) Farrant v. Barnes, 32 L. J. C. P. P. C. 155; Add. on Torts (5th ed. by 137. Cave), pp. 23-26. 610 CHAP. II.] WOKK AND LABOR. * 420 person who conceals in boxes and packages articles known by him to be of an explosive, corrosive, or combustible and danger- ous nature, and delivers them to another to be warehoused or carried with other goods by land or by sea, and fails to disclose the dangerous nature of the articles to the bailee, is guilty of a tor- tious act, and is responsible for all the consequences of his care- lessness, unless the bailee knew of the dangerous nature of the articles, and the * danger and risk attendant upon [ * 420 ] the receiving and dealing with them. And it is no answer to aver that the articles were well known in trade and commerce, and that the plaintiff knew what they were, without an express averment that he knew them to be dangerous, (m) " It is clearly a tortious act," observes Crompton, J., " for the consequences of which shippers are responsible, to ship goods apparently safe and fit to be carried, and from which the ship- owner is ignorant that any danger is likely to arise, without notice of such goods being dangerous, if the shipper is aware of such danger. Such shipment when the scienter is made out is clearly wrongful and tortious ; but it does not seem that there is any authority decisive on the point as to whether the shipper in which a quantity of that compound from one factoiy, and a parcel of " ex- ploders," such as are used in firing dualin, came, by an unfortunate coincidence, to the same depot of the Boston & Albany Railroad, at the same time, to be transported. Each package was properly labelled; but as the workmen had never heard of dualin, and knew nothing of the office of the exploders, they put them side by side in the same freight-car, and some concussion on the trip caused a dis- astrous explosion. See an instance also (Nitro-Glycerine Case, 15 Wall. 524, and Barney v. Burstenbinder, 7 Lans. 210) in which nitro-glycerine oozing from the cracks of a leaky box was mistaken by the workmen in an express company's office for salad oil, and they began opening the box with a mallet and chisel, causing a fatal explosion. These cases recognize it to be the duty of a shipper of dangerous articles, especially those of novel character, to take precantions commensurate with the danger, for informing the carrier of the special responsibility he incurs. The subject has been partly regulated by national laws, and part has been left to State legislation. Before the days of railroads, it had come to be understood that Congress controlled carriage of dangerous articles by water ; but the early laws on the subject mentioned only gunpowder and the few articles of dangerous character then in use. In 1866 transportation of nitro-glycerine and its com- pounds was restricted by act of Congress (see Rev. Stat, sects. 4278, 4279; also sects. 5.353, 5354). But the provisions do not embrace gunpowder; apparently this is controlled only by State laws or the regulations of the various carriers. It is also to be remembered that each State regulates any transportation commencing and ending within its limits. (m) Hutchinson v. Guion, 5 C. B. N. s. 149; 28 Law J. C. P. 63. 611 •421 CONTRACTS FOE SEEVICES. [BOOK II. is liable for shipping dangerous goods without a communication of their nature, when neither he nor the sliipowner is aware of the danger. It seems very difficult to hold that the shipper can be liable for not communicating what he does not know. Lord Ellenborough's dictum (n) would tend to show that knowledge of the party shipping is an essential ingredient. I entertain great doubt whether either the duty or tlie wan-anty extends beyond the cases where the shipper has knowledge, or the means of knowledge, of the dangerous nature of the goods when shipped, or where he has been guilty of some negligence as shipper, as by shipping without communicating danger which he had the means of knowing, and ought to have communicated." (o) Deposit of Goods under a Special Contract — In a contract of bailment, the bailee may impose any fair and reasonable terms he pleases upon the bailor, and may make his acceptance of the goods to be kept, and his responsibility for the re-delivery of them dependent upon those terms being assented to and observed by the parties who deal with him ; but if he accepts the goods and takes them into his possession, he will not be allowed to impose terms utterly repugnant to, and inconsistent with, any contract at all. Where public notice is given of the terms upon which goods are received, or the terms are printed on a paper or receipt delivered to the bailor, and it is sought to hold him to the terms on the ground that he has impliedly assented to them, it should be shown that the terms are reasonable and fair, and not devised for the purpose of fraud or extortion, or for the pur- pose of exonerating the bailee from responsibility for his own negligence and misconduct (j5) [*421] * Detention of Chattels by Bailees under a Claim of Lien. — The detention of chattels by a bailee is fre- quently justified on the ground that the bailee has a right to hold them in his hands until some pecuniary demand upon or in respect of them has been satisfied by the bailor. (») "WiUiams v. East Ind. Co., 3 0^) Byles, J., Van Toll v. S. E. Ey. East, 192. Co., 12 C. B. k. s. 7.'); 31 Law J. C. P. (o) Brass v. Maitland, 6 Ell. & Bl. 245; Peek v. North Staff. Ry. Co., 10 486; Gibbon v. Paynton, 4 Burr. 2298; H. of L. Ca. 473. This subject is more Batson v. Donovan, 4 B. & AH. 33, fully illustrated, post, Ch. II., sect. 4; 37 Carriers, Passengers, Luggage, p. *544. 612 CHAP. 11.] WORK AND LABOR. *4:]1 The right of lien, when once established, is not destroyed by- reason of the remedy for the recovery of the debt secured by the lien being barred by the statute of limitations. (§■) And it will exist although it arises out of an immoral considera- tion,- if the plaintiff cannot recover without relying on the immorality, on the principle of in pari delicto potior est conditio possidentis, {r) Right of Iiien. — If a defendant, having a lien upon goods, refuses to deliver them up on demand, and claims to retain them on grounds quite distinct from a claim of lien, his refusal will be evidence of a conversion, and the existence of the lien will be no answer to an action for the conversion of the property, (s) But a person does not waive his right of lien merely by omitting to mention it when the goods are demanded ; and if he claims a right to detain them, in respect of two separate sums claimed to be due to him, and he has a lien only in respect of one of those sums, his refusal is no evidence of a conversion, unless the sum in respect of which the lien exists is tendered, {t) " Where a person," observes Alderson, B., " has no right of property in goods in his possession, but merely a right of lien, he has no right to sell them ; and if he does sell the goods, he thereby puts an end to his lien ; " (m) but where goods have been deposited as security for a loan of money to be repaid on a day certain, there is an implied power of sale in case of default in payment on the day named. (,<;) An unauthorized dealing with a pledge will not, it seems, revest the property in the pledgor, though it may give him a right of action for any damage actually caused by such unauthorized proceeding, {y) And it has been held, that a lender of money on the security of railway stock has no right to realize the security during the currency of the loan, and that if (q) Spears v. Hartley, 3 Esp. 81; 281 ; Kerford j). Mondel,. 28 Law J. Excli. Re Broomhead, 16 Law J. Q. B. 303. 355. (m) White v. Spettigue, 13 M & W. (r) Taylor v. Chester, L. R. 4 Q. B. 608. 309; 38 L. J. Q. B. 225. {x) Pigot v. Cubley, 15 C. B. N. s. (s) Cannee v. Spantoti, 8 Sc. N. R. 701 ; 33 Law J. C. P. 134. 714; 7 M. & Gr. 903; Dirks v. Richards, (i/) Donald v. Suckling, L R. 1 Q. B. 5 Sc. N. R. 534; 4 M. & Gr. 374; 585; Halliday ». Holgate, L. E. 3 Exch. Weeks v. Goode, 6 C. B. N. s. 367. 299. (t) Scarfe V. Morgan, 4 M. & "W. 613 * 422 CONTRACTS FOK SEKVICES. [BOOK II. he does so, the owner may recover from him the price he got for the stock, if it is to his interest to do so. (a) [*422 ] * Where the plaintiff had agreed to buy of the defend- ant a stack of hay for £86, to be paid for when taken away, and to be removed by the 31st of May, and part only of the hay was paid for and removed by the time appointed, where- upon the defendant, in the month of August following, cut up and consumed the residue of the hay, and the plaintiff after- ward tendered the unpaid purchase-money and demanded the hay, and sued the defendant for converting it to his own use, it was held that the defendant's lien on the hay was determined by the act of conversion ; that from the moment the defendant used the hay in a manner inconsistent with his claim of lien, his lien ceased, and a right of possession accrued to the purchaser, (a) Where, however, some apples which had been sold by the de- fendant to the plaintiff at an agreed price, to be paid on a given day, were deposited in a kiln in an outhouse on the defendant's premises, and the key of the kiln was given by the defendant to the plaintilf, but the defendant kept the key of the outer door of the outhouse, and, the day of payment being passed, the defend- ant gave the plaintiff notice to take and pay for the apples, and, no attention being paid to this notice, the defendant carried them away and resold them, and the plaintiff then brought an action for a conversion of them, it was held that the defendant was entitled to a verdict under a plea denying the plaintiff's right of possession of tlie apples. (&) A Person camiot set up a Right of Lien -wrhich is at Variance with the Terms or Conditions, or Implied Understanding, upon which he received the Property. — TJIUS, if a livery-stable keeper takes in a horse to be stabled and fed for hire, upon the under- standing that the horse is to be re-delivered to the owner when- ever he requires it, the livery-stable keeper has no right of lien upon the horse for his keep, (c) or for money paid by him to a veterinary surgeon for blistering the horse according to the (z) Langton v. Waite, L. E. 6 Er[. (6) Milgate «. Kebble, 8 M. & Gr. Ca. 165. 100; 3 Sc. IST. E. 358. (",) Gurr V. Cuthbert, 12 Law J. (c) Judson v. Etheridge, 1 r. & M. E.xch. 309. 743; Yorke v. Grenaugh, 2 Ld. Eaym. 868. 614 CHAP. II.] WORK AND LABOR. * 423 owner's directions, (d) the right of the owner to the possession of the horse for the purpose of riding him being deemed inconsistent with the right of lien. The livery-stable keeper, indeed, who holds a horse at the constant disposal of the owner, is the mere servant of the latter, and has nothing more than the bare custody of the animal. This is the case also with the agister of milch cows, who receives them to be depastured, agisted, or fed, the owner having a right to the possession of the cows whenever he requires them for the purpose of milking, (c) And if a trainer of race-horses holds * them on the understand- [*423] ing that the owner may send them, to be ridden by a jockey of his own choice at any race he chooses, and the trainer cannot lawfully refuse to deliver them to the owner for such a purpose, that state of things is inconsistent with the existence of a right of lien. (/) If a policy of insurance is deposited for safe custody only, the depositary cannot set up a lien upon it for an antecedent debt, (g) If a person receives a bill of exchange to get it discounted, and pay over the proceeds to the owner, or apply them in some specified manner, he has no lien upon the bill for money that may be due to him from the latter.(A) If a ship-factor receives the certificate of registry of a ship in order to pay the tonnage dues, he has no lien upon it for a debt due to him from the ship-owner, (i) Whenever goods in the hands of a bailee or depositary are by the terms of the contract to be re-delivered to the owner at some stated period, or " if by the agreement the plaintiff is to have the goods immediately, and the payment in respect of them is to take place at a future day, the bailee cannot set up any lien." {k) A lien is wholly incon- sistent with a dealing on credit, and can only exist where pay- ment is to be made in ready money, or security is to be given the moment the work is completed. (I) " If security " (such as a bill, note, or bond) " is taken for the debt for which the party {d) Orchard 1). Eackstraw, 19 Law J. (h) Key v. Flint, 8 Taunt. 23; 1 C. P. 303. Moorp, 451; Buchanan v. Findlay, 9 B. (e) Jackson v. Cummins, 5 M. & W. & C. 749. 342; Chapman v. Allen, Cro. Car. 273. (») Burn v. Brown, 2 Stark. 273. (/) Forth I). Simpson, 13 Q. B. 685. (k) Crawshay v. Homfrey, 4 B. & Ig) Muir i>. Fleming, D. & K., N. P. Aid. .52. C. 30. (I) Eaitt V. Mitchell, 4 Campb. 146. 615 *424 CONTEACTS FOR SERVICES. [BOOK II. has a lien upon the property of the debtor, such security being payable at a distant day, the lien is gone.'' (m) If a person, when goods are demanded of him, rests his re- fusal to deli\'er them up on gi-ounds quite distinct from any claim of lien, he cannot afterward, on finding that those grounds fail him, put forward a claim of lien as a justification for his refusal. Where, therefore, a warehouseman on being applied to for brandy which had been delivered to him for safe custody, refused to gi-\'e it up, saying that it was his own property, it was held that he could not afterward justify his refusal on the ground that warehouse rent was due to him, and was not ten- dered at the time the brandy was demanded, (n) " for it would be absurd to offer the expenses of keeping the goods to one who insisted on retaining them as his own property." (o) But a person does not, of course, lose his right of lien by merely omitting to mention it when the goods are demanded. [*424] And if he claims a right to retain them for * two separate charges, and has a lien only in respect of one of them, this will not dispense with the necessity of a ten- der of the one in respect of whicli the lien exists, (p) Parties against whom a Lien may be claimed. — A mere tres- passer or wroug-doer, who gets possession of propei'ty without the consent of the owner, cannot in general deal with it so as to create a right of lien thereon as against the true owner, (q) unless the person in whose possession the property is placed is a public innkeeper, or common carrier, or common ferryman, or is bound to exercise his craft in favor of all who require his ser- vices. Where the owner of a pony phaeton intrusted the phae- ton to a painter to be painted, and the latter carried it to the premises of the defendant, who was in the habit of taking carriages to stand on his premises for hire, and there left it, and, the phaeton never having been painted or brought back, the plaintiff, after the expiration of three months, made search for (m) Hewi.son v. Guthrie, 3 So. 298; (o) White v. Gainer, 9 Moore, 45. 2 B. N. 0. 756; Cowell v. Simpson, 13 (p) Scarfe v. ]\Iorgan, 4 M. & W. Ves. 280; Horncastle v. Farran, 3 B. & 281. Aid. 497. (?) Hartop v. Hoare, 3 Atk. 44 ; (n) Boardinan v. Sill, 1 Campb. 410, Lempriere v. Pasley, 2 T. E. 485; Cas- 11.; Weeks v. Goode, 6 C. B. N. s. 367. tellain v. Thompson, 13 C. B. N. s. 105. 616 CHAP. II.J WORK AND LABOR. * 425 it, and found it on the premises of the defendant, who claimed a lien on it for the price of the standing-room, it was held that the defendant had no such lien. (?•) And where a chaise, which had been broken by the negligence of a servant, was taken by the latter to a coach-maker's, without the knowledge or sanction of the master, and was there repaired, it was held that the coach-maker had no lien upon the chaise as against the master for the price of the repairs, (s) It would seem also, from the adjudged cases, that if a servant is directed to take a carriage to A to be repaired, and he by mistake takes it to B, B would have no lien upon it for the price of the repairs, as the servant was not authorized to employ B in the matter. This may be law, but it is hardly just, and opens a wide door to fraud, as it is impossible for the coach-maker to be cognizant of the par- ticular directions given by the master to the servant. If the servant has received general directions to get the carriage re- paired, he may then, of course, give a right of lien to any coach- maker he may employ to do the repairs, (t) It has been held, that if a person obtains the property in goods by fraud, and pawns them before the seller has avoided the contract, the pawnee is entitled to a lien upon them for the money advanced, as against the seller, (u) But the possession of the goods by the pawnor must have been obtained by virtue of a contract in- tended to pass the property to him. If a person pawns with another property to * which he has no color of [*425] title, the jus tertii may always be set up against the pawnor by the pawnee, (cc) General lien is a right on the part of the manufacturer or workman, factor, broker or commission agent for the sale of goods, warehouseman or wharfinger, into whose hands goods have been placed to be worked up, repaired, improved, sold, or taken care of for hire, in the ordinary course of their trade or employment, to retain possession of them, not only until they (r) Buxton v. Baughan, 6 C. & P. E. 499; said to be a good law by Parke, 674. B., in Load v. Green, 15 M. & W. 219; («) Hi.scox V. Greenwood, 4 Esp. 174. and Cresswell, J., in White u. Garden, (t) Weldon v. Gould, 3 Esp. 268. 20 Law J. C. P. 168. (m) Parker v. Patrick, 5 T. E. 175; {x) Cheesman v. Exall, 6 Excb. 345. doubted in Peer v. Humphrey, 2 Ad. & 617 * 426 CONTRACTS FOR SERVICES. [BOOK II. have received payment of the hire due to them for their ser- vices in the particular employment, but for the general balance due to them from their employer in the ordinary course of deal- ing for work and services of the like nature bestowed at other times upon other goods of the employer. This right depends either upon the express agreement of the parties, or the custom and usage of the particular trade or business. The onus of making out and establishing the right, whether it exists by agree- ment or by custom, lies upon the person claiming it. When custom and usage of trade are relied upon as establishing the right, the usage must be shown to have governed the parties in their previous dealings together, or to prevail to such an extent that the contracting party must be supposed to be cog- nizant of it, and to have contracted subject to the usage ; but as the right is an encroachment upon the ordinary rules and principles of the common law, it is regarded with jealousy by the courts, and requires the strongest proof \\liere persons carry on a trade or business in which a general lien is recognized, they cannot claim a general lien in respect of goods or securities which are, by agreement, held for a par- ticular purpose, or under special conditions inconsistent with the claim of a general lien, (y) A general lien cannot be set up in opposition to the terms and conditions upon which the goods were received. TIius, if a broker or factor receives goods to sell, and applies the proceeds in some particular manner, he cannot set up a lien for his general balance, because a lien of this nature would be utterly inconsistent with the terms upon which he acquired passession of the goods, (s) And if a debtor deposits a bill of exchange with his creditor, in order that the latter may get the bill discounted and pay over the proceeds to the debtor, the creditor cannot set up a lien upon the bill for the general balance due to him. (a) In some places, dyers, calico-printers, fullers, warehousemen, wharfingers, and [*426] packers, have been held, in accordance with *the proved usage of their several trades in the particular locality, to have a lien on goods sent to them to be dyed, printed, (y) Bock V. Gorrisseii, 2 De G. F. & (a) Key v. Flint, 1 Moore, 451; 8 J. 434; 30 Law J. Ch. 42. Taunt. 21. (s) Walker v. Birch, 6 T. R. 262. 618 CHAP. II.] WORK AND LABOR. * 426 warehoused, worked upon, or taken care of, not only for the work done upon, or in respect of, the particular goods in their possession, but also for their charges of dyeing, printing, ware- housing, &c., other goods which had previously been delivered back to their owners ;(i) and in other places, where no such usage has been shown to exist, they have been held to have no such general lien, (c) The usage, when it exists, must be shown to be long established and notorious, fair and reasonable, and not contrary to any established principle of law. (d) It has been held that a publisher has a lien upon any one or more parts or numbers of a work, for his charges and disbursements for printing or publishing the various numbers, though not con- secutive, of an entire work ; (e) also that an agent who carries on business, in his own name, on behalf of an undisclosed prin- cipal, has a lien on the business, the stock employed in it, and the debts owing to it, to the extent of the liability which he has incurred in the conduct and management of the busi- ness. (/) Notice that Goods -will be held subject to a General Lien. — The right to retain for a general balance may, with certain ex- ceptions presently noticed, be created by the express contract of the parties. Every workman and artificer not being a public innkeeper, common carrier, or common ferryman, and not being bound to exercise his calling in favor of all persons who may require his services, has a right to prescribe the terms upon which he will receive goods into his possession to be dealt with in the ordinary course of his trade, and may by express notice reserve to himself a general lien, if he thinks fit so to do. Thus, where the dyers, dressers, bleachers, whisters, printers, and cal- enderers of Manchester, and the neighborhood, came to a public resolution or agreement, at a public meeting in Manchester, that they would receive goods to be dyed, dressed, bleached, &e., on (b) Savin V. Barchard, 4 Esp. .52; (d) Eu.shforth v. Hadfield, 6 East, Naylor v. Mangles, 1 ib. 109; Spears v. 528; Leuckhart v. Cooper, 3 Se. 521; 3 Hartley, 3 ib. 81; Koset). Hart, 8 Taunt. B. N. C. 99. 499; 2 Moore, 547; "Webb v. Eox, 2 (e) Blake v. Nicholson, 3 M. & S. Peake, N. P. C. 167. 167. (c) Green t). Farmer, 4 Burr. 2214; 1 (/) Foxcraft v. Wood, 4 Euss. 488. W. Bl. 651 ; Holderness v. Collinson, 7 B. & C. 216. 619 * 427 CONTRACTS FOR SERVICES. [BOOK II. the condition that such goods should not only be subject to the debts for the work and labor performed upon them, but also for the general balance due from the persons employing them for work and labor of the same kind performed upon goods which they had already delivered out of their possession, it was held that persons who had sent goods to the dyer or fuller, with notice of tliis resolution, conceded to them a lien for their general balance, (jj) [*427] * General Iiien by Custom of Trade — 'Warehouse- keepers — "Wharfingers.^ — Where certain public ware- house-keepers of the city of London claimed a right to retain various bales of wool under an ancient custom of that city, for all public warehouse-keepers to have a general lien upon all goods from time to time housed in their warehouses in the name of the merchants or other persons by whom such public ware- house-keepers were employed, for all moneys or any balance thereof due from such merchants to such public warehouse- keepers for their advances, expenses, and charges, &c., it was held that the custom was bad, as the general lien claimed was not confined to goods, the property of the person who employed ' It is a recognized principle of American law that warehousemen and wharf- ingers have, like other bailees for hire, a lien upon the goods for their charges. Edwards, Bailments, sects. 350, 364; Story, Bailnjents, sect. 453 a.; Schouler, Bail- ments, pp. 122-128; U. S. Dig. tit. Warchouscnun, sect. 44. The bailee of personal property can impose no lien thereon as against the owner without his knowlcilgi'. and consent. Hmall v. liobinson, 69 Me. 42,'i. Where a carrier stores the goods with a warehouseman, at the place of delivery, the ware- houseman's lien for storage is superior to the carrier's for his freight. Powers V. Sixty Tons of Marble, 21 La. Ann. 402. On the lien of warehousemen for storage of cotton as against that of the land- lord of tlie premises where the cotton is raiscMl, see Dobbins v. Clark, 59 Ga. 709. The bailee's lieu is lost by voluntary relinquishment of his possession of the goods or by giving credit for his dues. Tucker v. Taylor, 53 Ind. 93; Robinson v. Larrabee, 63 Me. IIC. He can then only bring action against the party indebted. Garrard ti. Moody, 48 Ga. 96. See, further, I31ackman v. Pierce, 23 Cal. 508; Board of Trade v. Buckingham, 65 IH. 72; Farrington u. Meek, 30 Mo. 578; Wilson V. Martin, 40 N. H. 88; Lovett v. Brown, ib. 511; Hazard v. Manning, 8 Hun, 613; Rodgers v. Grothe, 58 Pa. St. 414. A wharfinger has a lien for his advances for freight. Sage v. Gittner, 11 Barb. 120. On the jurisdiction of State and Federal courts over a lien for wharfage, consult Brookman v. Hamill, 43 N. Y. 554. (g) Kirkmanw.Shawcross, 6 T. R. 14. 620 CHAP. II.] WORK AND LABOR. *428 or retained the warehouse-keeper. "The custom," it was observed, " if supportable, would make the goods of a foreign merchant, which have been consigned to a London factor for sale, and by him put into the warehouse of the warehouse-keeper for safe custody, liable to a private debt of the factor for expenses in- curred in respect of other goods of third persons, which had been in his hands at former times, for charges contracted upon such goods, during any antecedent period ,of time, and that to an un- limited extent ; which would be unreasonable and unjust, and obviously prejudicial in a very high degree to foreign trade, for no foreign merchant would consign his goods to this country for sale, if they could be made liable whilst warehoused for custody, to satisfy a debt already due from the factor to the warehouse- keeper, in respect of other goods, (h) Dock companies have no general lien for wharfage charges, and cannot detain the goods of one man to satisfy wharfage dues and charges incurred by another, (i) If a wharfinger has a general authority to receive all goods directed for A B, and goods come to his wharf directed by mistake for A B, the real owner of the goods cannot take them away without paying the charges incident to those par- ticular goods ; but it is equally clear that the wharfinger could not set up a lien on such goods for a general balance of accounts due from A B to him. {k) Extinguishment of Lien by Abandonment of Possession. — If a bailee who has a right of lien upon property in his possession voluntarily parts with the possession of such property, the lien is gone ; so that if he afterward recovers possession of the property his right of lien does not revive ; Q) but if it is stolen or taken away by a trespasser or by- fraud, and he gets it back again, his right of lien is not extinguished, (m) Possession of goods and chattels may be given up, and the right of lien extin- guished, * although the goods and chattels are never [*428] actually removed from the premises of the party having (h) Tindal, C. J., Leuckhart v. (k) Eiohardson v. Goss, 3 B. & P. Cooper, 3 Sc. 531; 3 B. N. C. 99; 35 123. Hen. VI., 33, cited Kex v. Humphery, (1.) Sweet v. Pyrn, 1 East, 4. McClel. & Y. 193. (m) Wallace v. Woodgate, K. & M. (i) Dresser v. Bosanquet, 32 Law J. 194. Q. B. 57; 4 B. & S. 460, 486. 621 *428 CONTRACT FOE SERVICES. [BOOK II. the lien, (n) And, on the other hand, as the possession of the servant is the possession of the master, it follows that a deposi- tary or bailee who has a right of lien upon goods in his posses- sion does not lose his right by placing the goods in the hands of his servant or agent for custody, who is to hold them at his disposal. "Warehousekeepers and wharfingers to whom goods have been delivered by masters of ships for safe custody, have been held to be the servants of such masters, holding the goods at their disposal, so as to preserve the shipmaster's lien for the freight after the goods have been taken out of the ship, (o) The right of lien being a mere personal right, which cannot be parted with, it follows that a bailee who has got a lien cannot sell his right to another, nor can he transfer, as we have just seen, the property over which the lien extends, to another, without losing his right of lien, (^) unless the property has been pledged to secure the repayment of money advanced, with an express or implied power of sale, (q) for there is a clear distinction in this respect between a lien, which is a mere personal right of deten- tion, and a pledge deposited to secure the repayment of money. (?•) An innkeeper, consequently, cannot sell the horse of his guest for the expense of his keep, except within the city of Loudon, (s) A sheriff cannot sell an interest of this description, and he can- not, consequently, seize property covered by the lien under an execution against the party claiming the lien ; (t) but if the exe- cution is against the owner of the goods, he is entitled then to seize them, after tendering the amount of the debt for M'hich they are a security. A person may, as we have before seen, reserve to himself, by express contract, a right to take and to hold goods as a security for the payment of a debt, so that he will be entitled to resume possession of the goods after he has parted with them, and to re-establish his lien, provided the rights of no third person have intervened. Statutory Power of Sale in Discharge of a Right of Lien. — By the Merchant Shipping Act, 1862, power is given to wharf (») Jacobs V. Latour, 2 M. & P. 205. (r) Donald v. Suckling, L. E. 1 Q. B. (o) fieeves v. Capper, 5 B. N. C. 585. ^^^- (s) Jones V. Peavle, 1 Str. 556. (p) Clerk V. Gilbert, 2 B. N. C. 357. (i) Lcgg v. Evans, 6 M. & W. 42; (?) See Johnson v. Stear, 33 L. J. see Young v. Lambert, L. R. 3 P. C. Ca C. P. 130. 142 622 CHAP. II.] WORK AND LABOR. * 429 or warehouse owners, in certain cases, to sell by public auction goods placed in their custody, and apply the proceeds of the sale in satisfaction and discharge of the charges upon them, (u) Tender of the Debt in Extinguishment of the Eight of Lien. — Wherever a person has a lien upon goods for the pay- ment of * money due upon them, whether he be an [ * 429 ] unpaid vendor in possession of goods sold, or a manu- facturer or workman in possession of goods that have been worked up or repaired by him, or a pledgee holding chattels as a security for a debt, the lien may be at once extinguished, and a right to the possession of the goods created, by a tender of the money due upon them, (x) Where a lease was deposited with the defendants as a security for the repayment of £150 on a promissory note payable on demand, and the defendants agreed that they would not enforce their remedy upon the note so long as the maker should duly pay the interest thereon, the rent of the premises, and what might from time to time be due to them for beer, and if he failed in any of these respects, the defend- ants were to be at liberty, after notice, to sell the lease and to deduct the expenses of the sale, the principal money and interest, and any account then due from the plaintiff to the defendant, it was held that the moment the amount of the note was paid or tendered, there was an end of all the stipulations as to what should be done with the lease in the event of the non-payment of the note and interest, and that the plaintiff had a right to maintain an action of detinue to recover back his lease, (y) Transfer of the Bailment. — In all cases of bailment of chattels by one person to another for hire or reward, it is essential that the bailee should preserve his dominion and control over the property, and his power of restoring it to the owner. If, there- fore, he parts with the possession of the chattel, and places it under the dominion and control of a stranger, the bailment is determined, and the owner has a right of action for the recovery of the thing bailed. (2) Where, after a bailment of chattels, the bailor has transferred all his interest in the chattels to another, the bailee is entitled (m) 25 & 26 Yict. c. 63, sects. 73-76. {y) Chilton v. Carrington, 15 C. B. {x) Ratolifif V. Davies, Cro. Jao. 105. 244 («) Cooper v. Willomat, 1 C. B. 682. 623 *430 CONTKACTS FOE SERVICES. [BOOK II. to have an order or authority from the bailor to deliver them to his transferee, or a reasonable time to make inquiry and ascertain the validity of the new title of the claimant before he can be made responsible in damages for the non-delivery of the chattels to the latter, (a) "Where, for example, goods have been bailed by the owner to a warehouse-keeper to be kept, and the owner has subsequently sold the goods to a pur- chaser, the warehouse-keeper is not responsible for refusing to deliver the goods to the purchaser without the production of a delivery-order from the bailor, or some documentary evidence of title to the goods on the part of the stranger who demands [ *430 ] them ; but he may, if he * pleases, at once attorn to the purchaser, and rely upon the title of the latter, (b) If the bailee has received the chattels upon the terms that he is to deliver them to the bailor, or to any person authorized by him to receive them, a lona fide purchaser or mortgagee who is in possession of a bill of sale, or assignment, or mortgage, exe- cuted by the bailor, transferring all the bailor's interest in the chattels to such purchaser or mortgagee, may, on presenting such bill of sale or mrutgage to the bailee, lawfully demand posses- sion of the chattels, and in case of tlie refusal of the latter to deliver them to him within a reasonable time after the demand, may maintain an action for the conversion or detention of the property, (c) the bill of sale or mortgage, signed by the bailor, being an authority or direction to the bailee to de- liver up the chattels to the purchaser or mortgagee; but if there be a mere oral agreement of sale, and no warrant, or authority, or direction from the bailor for the delivery of the goods, the refusal of the bailee to deliver them to the stranger would be no proof of a conversion or of a wrongful detainer. It is to a case of this sort, where there has been a mere oral trans- fer of chattels by a bailor, without any warrant or authority from the latter to the bailee to deliver them to the transferee, that the dictum of Holt, C. J., must be taken to apply, that if A bail (a) Add. on Torts (5th ed., by Cave), Cheesman v. Exall, 6 Excli. 344; Add. p. 465; Lee v. Bayes, 18 C. B. 607; 25 on Torts (5th ed., by Cave), p. 465. Law J. C. P. 249; Solomons v. Dawes, 1 (c) Franklin 'v. Neate, 13 M. & W. ^^P- 82. 484; 1 Roll. Abr. Detinue (C), 2, 3; (6) Ogle V. Atkinson, 5 Taunt. 762; Add. on Torts, supra. 624 CHAP. II.] WORK AND LABOR. * 431 goods to C, and after give his whole right to them to B, B can- not maintain detinue for them against C, because the special property that C acquires by the bailment is not thereby trans- ferred to B. (d) If the right of property in the subject-matter of the bailment has been transferred by devise, the devisee may sue for the detention or loss of the property, and it is no answer to the action to show that the subject-matter of the bailment was lost in the lifetime of the devisor, and has not been in the possession of the bailee since the accrual of the title of the devisee, (e) So if the right of property in title-deeds, or an heir- loom, comes to the heir-at-law by descent, the heir is the proper person to sue for their detention. (/) If the bailor is not himself the owner of the goods, but has some special property therein, or is himself a bailee of them, and answerable over to the real owner, he is entitled to maintain an action for damage done to them, or for the loss of them, (g) A bailee is not estopped, as we have seen, from showing that the bailor had a defeasible title, and that his title has been * defeated by matter subsequent to the bailment or [ *431 J to the recognition of the title by the defendant. (7i) He may refuse to re-deliver the goods to the bailor on the ground that they are the property of another person who has demanded and received them, or who has forbidden the bailee to part with the possession of them ; (i) but the bailee cannot, if the posses- sion of the bailor was a lawful possession, and the bailment was not founded in fraud, of his own accord set up the jus tertii. (k) He can set up the title of another only " if he defends upon the right and title and by the authority of that person." (f) But if the bailor was a trespasser or a thief in possessing himself of the goods, or the bailment was made with intent to defraud, the bailee may justify his refusal to deliver them up to the bailor, whether the true owner has or has not interposed to prevent delivery. (d) Rich V. Aldred, 6 Mod. 216. {h) Thome v. Tilhuiy, 3 H. & N. (c) Goodman v. Boycott, 2 B. & S. 534; 27 Law J. Exch. 407. 1 ; 31 Law J. Q. B. 69. (i) Shelbury v. Scotsford, Yelv. 22 ; (/) Bro. Abr. Detinue, pi. 30, 45. Biddle ■!7. Bond, ante, p. *360. (17) Freeman v. Birch, 1 N. & M. 420; (k) Armory v. Delamirie, 1 Str. 505. Nicolls V. Bastard, 2 C. M. & R. 660. (t) Pollock, C. B., Thornew. Tilbury; Blackburn, J., Biddle v. Bond, ut sup. ; VOL. I. 40 625 *432 CONTRACTS FOE SERVICES. [BOOK II. Where the plaintiff in an action for the detention of plate proved that he had pawned the plate with the defendant, and afterward sought to redeem it, and tendered the amount due upon it, but the defendant refused to deliver it up, it was held that the defendant might, under a plea alleging that the plate was not the property of the plaintiff, show that the phiintiff had, prior to the deposit of the plate with the defendant, transferred it by a bill of sale to a purchaser, who, nevertheless, allowed the plaintiff to continue in possession of it ; that the plate had been deposited with the defendant in fraud of such purchaser, and that the defendant detained the plate by the order and under the aiTthority of the latter, (m) If the owner of goods has delivered them to a bailee to keep for him, so that the bailee has received the goods under a valid title, and the bailor, subsequently to the bailment, has, by bill of sale, transferred all his interest to a stranger, who demands the goods of the bailee, and the latter refuses to deliver them up imtil he has had time to receive the directions of the bailor, there is no evidence of a conversion. (ii) In an action for a conversion of chattels, it was held by Lord Kenyon, that where the demand of the things for which tlie action is brought is not made by the owner, who deposited them with the defendant, but by another person on his account, and the defendant refuses to deliver them on the ground that he does not know [*432] whether the things belong to him or * not, and there- fore keeps them till that is ascertained, or that tlie person who applies is not properly empowered to receive them, or until he is satisfied by wliat authority he applies, that is not such a refusal as is evidence of a conversion, (o) And if the defendant has a hona fide doubt as to the title of the claimant, it must be shown that reasonable time was given him for clearing up that doubt, {p) But if he sets up the title of his bailor, and af&rms him to be the owner, or gives an absolute, unqualified Bourne v. Fosbrooke, 34 Law J. C. P. C. P. 247; SheriJan v. New Quay Co., 164. 4 C. B. N. s. 618. (m) Cheesman v. Exall, 6 Exch. 344. (o) Solomons v. Dawes, 1 Esp. 82. ()i) Lee V. Bayes, 18 C. B. 607; 25 (i)) Pillot v. "Wilkinson, 32 Law J. Law J. C. P. 249; Europe & Austr. R. Exch. 201; 34 lb. 22. M. Co. V. R. M. St. P. Co., 30 Law J. 626 CHAP. II.] WORK AND LABOR. * 433 refusal to deliver up the chattels, there is evidence of a conver- sion, (q) Where a pony-chaise was delivered to a workman to be painted, and the latter deposited it in the hands of a person who refused to deliver it up to the owner, unless the latter either pro- duced the person who placed the chaise in his hands, or an order from him for its delivery, it was held that the owner was entitled to the possession of his property without doing either one or the other, (r) Joint and Separate Rights of Action. — If a chattel has been deposited by two or more joint-owners of it in the hands of a bailee, who has agreed to keep it for them, it is not in the power of one of them to take it out of his hands without the consent of the others. If that were not so, each might demand the chattel, and have an action for its non-delivery, and so the bailee might be harassed with as many actions as there were joint-owners, (s) But if the bailee thinks fit to deliver up the goods to one of the joint-bailors, a joint-action by all of them cannot afterward be maintained against him, for the one who has got the goods cannot join with the others in suing for the non-delivery of them, (f) If several joint-owners allow one of them to deal with their property, and place it in the hands of a bailee, the latter is accountable to the owner with whom he deals, (u) " as if a charter be made to four, and one of them bails the charter to keep, he alone, without the others, may bring detinue ; or all the owners may be joined as plaintiffs, except in the case of deposits of money in the hands of bankers." («) Where two persons were severally entitled to separate portions of the contents of a box delivered by their agent to a railway company, to be carried for both of them, and the box was lost, it was held that they might sue jointly for damages, (y) Declarations against Bailees for Damage to Chattels. — Where *the plaintiff's declaration alleged that the [*433] {q) Pillot V. Wilkinson, supra; (u) Martin, B., Walshe v. Provan, 8 Woodley v. Coventry, 2 H. & C. 164. Exch. 852. (r) Buxton v. Baughan, 6 C. & P. (x) Thel. Dig. lib. ii., cap. 47, sect. 674. 8; Broadbent v. Ledward, 11 Ad. & E. {s) Attwood V. Ernest, 13 C. B. 889; 211. 22 Law J. C. P. 225. («/) Metcalfe v. Lond. & Brighton Ey. (t) Brandon v. Scott, 7 Ell. & Bl, Co., 4 C. B. N. s. 319; 27 Law J. C. P. 237; 26 Law J. Q. B. 163. 333. 627 *433 CONTRACTS FOE SERVICES. [BOOK II. defendant undertook, safely and securely, to raise up several hogsheads of brandy of the plaintiff then in a certain cellar, and to lay them down again in a certain other cellar, and that the defendant and his servants so negligently and carelessly put down the hogsheads in the said other cellar that, through want of care on their part, the casks were staved and a great quantity of brandy was spilt, it was held that the declaration disclosed a good cause of action, though it did not allege that the defendant was a common porter, or that he was to have any reward for his pains, (z) Re-delivery of Materials furnished by the Employer. — If the bailor, before the work has been done, countermands the order for it, he has a right to the immediate return of the chattel, although by his having countermanded the order he may render himself liable to an action for a breach of contract, (a) If the bailee by mistake, or in obedience to a forged order, returns the chattel to the wrong person, and the article is lost, he is respon- sible for the loss, (h) Contracts for the Performance of Work — Building Contracts,^ -—Prevention of Performance — Damages. — Where a contract has been entered into for the building of a house, and the owner refuses to permit the building to be completed, and prevents the workman from earning the stipulated remuneration, the measure of damages in respect of so much of the' contract as remains un- performed is the difference between what the performance would have cost the plaintiff and the price which the defendant agreed to pay. (c) And in all cases of prevention of performance, where the plaintiff has been deprived by the defendant of the benefit of the contract, the plaintiff is entitled to recover what he has lost by the act of the defendant, (d) When a contract for the performance of work and labor has 1 A Manual of Engineering Specifications and Contracts, by Lewis M. Haupt (Pliila. 1878), may aid those cons\ilted on tlie preparation of contracts for con- struction of public buildings or works. Its scope, however, is practical; it does not embrace legal decisions. {z) Coggs V. Bernard, 2 Ld. Raym. (c) Masterton v. Mayor, &o., Brooke- 909. tyre, ante, p. * 402. («) Lilley D. Barnsley, 1 C. & K. 344. (a!) Planche v. Colburn, 1 M. & Sc. {b) Wilson D. Powis, 11 Moore, 543; 51; Inchbald v. West, &c.. Coffee Co., Lubbock V. Inglis, 1 Stark. 104. post, Discharge. 628 CHAP. II.] MASTER AND SERVANT. * 434 not been fully carried out by the workman, but the employer has, and retains, the benefit of a part performance, and the con- tract is divisible and apportionable, or the plaintiff has been dis- charged from his liability to complete the portion unperformed, the measure of the damages is the residue of the full sum agreed to be paid, after deducting such an amount as will enable the defendant to get the contract completed and carried out accord- ing to the original intention of the contracting parties, (e) If the plaintiff has contracted to do the work and supply materials for a fixed *sum, and the defendant after- [*434] ward finds some of the materials, the defendant is en- titled to deduct the fair value of his materials from the contract price. (/) Where a judgment had been reco^'ered by the plain- tiff against a relation of the defendant, and the latter promised the plaintiff that if he would forbear to issue execution upon the judgment the defendant would erect and finish a substantial house, and cause a lease thereof to be granted to the plaintiff, and the plaintiff promised that such lease, when granted, should be in full satisfaction of the judgment, it was held that the mea- sure of damages arising from the breach of the defendant's prom- ise was the value of the house, if it had been erected, and of the lease thereof, and not the difference between the value of the judgment and the value of the house and lease, {g) SECTION II. MASTER AND SERVANT. Of Contracts of Hiring and Service.^ — The contract of letting and hiring relates as frequently to human labor and skill, care, 1 See Wood, Mast. & S. particularly c. 3, implied contracts; c. 4, express contracts; c. 7, statute of frauds; c. 8, illegal contracts; c. 9, injuries to servant; c. 10, enticing away servant ; c. 11, seduction; c. 12, master's liability for ser- [e) Ante, pp. *392-* 402; Cutler v. {g) Stnittu. Farlar, 16 M. &"W. 249; Close, 5 C. & P. 339. 16 L. J. Ex. 84. (/) Newton v. Forster, 12 M. & "W. 772. 629 *434 CONTKACTS FOE SERVICES. [BOOK II. and attention, as to movable and immovable property, realty, and personalty ; the labor and services of workmen and artificers vant's contract; c. 14, servant's liability; c. 15, master's liability to the servant; c. 16, co-servants; Schouler, Dom. Rel. (3d ed. 1882), Part VII., particularly c. 2, mutual obligations of master and servant; c. 3, servant's rights and liabili- ties as to third persons; c. 4. master's general rights and liabilities. See also Eeeve, Dom. Rel. 339-378; Ewell, Lead. Cas. 102-111; U. S. Dig. tit. Master and Servant; ib. tit. Services. The relation of master anil servant does not arise between the contractor with the State for the services of contracts, and the convicts assigned to him; and he is not liable to a third person for the consetjueuces of a convict's negligence in his work. Cunningham w. Bay State, &c. Co., 32 Hun, 210. One who contracts to labor for a specified term, and leaves the service before it is finished, cannot recover, unless act of the employer or inevitable accident pre- vented full performance. Earpu. Tyler, 73 Mo. 617. Nature of a rector's contract in the Prot. Ep. Church with the parish, and his right to recover for services. Perry v. Wheeler, 17 Am. L. Reg. N. s. 24, and note, ib. 33. Bishop is not liable for salary of priest whom he engages. Rose v. Vertin, 46 Mich. 457. Requisites and validity of a school teacher's contract, and his right to recover for services. School Directors v. Jennings, 10 111. App. 643 ; Ryan v. School Dist. No. 13, 27 Minn. 433; Atkins i). Van Bureu, 77 Ind. 447. Bank president, when not entitled to payment for services. Pew v. First Nat. Bank, 130 Mass. 391; Citizens' Nat. Bank v. Elliott, 55 Iowa, 104. Master is not entitled to money earned by servant for work for another person done out of business hoiirs. Wallace v. De Young, 98 111. 638. With respect to presumptions: where work is done by one person for another, a precedent request may be inferred from circumstances. Trustees of Wabash, &c. Canal v. Bledsoe, 5 Ind. 133. In regard to compensation, the law presumes a promise to pay an attorney at the statute rate; and the burden of proving that the attorney undertook to perform the services for a less rate, or without charge, rests upon the client. Brady v. Mayor, &c., 1 Sandf. 569. The same presumption holds in regard to medical services, a promise to pay the physician being implied, and, in order to defeat his clahn, affirmative evidence that such services were gratuitously rendered must be produced. He Scott, 1 Redf. 234. So, in an action by a physician to recover for services, the plaintiff is deemed the best and the proper judge of the necessity of frequent visits; and in the absence of proof to the contrary, the court will presume that all the professional visits made were deemed necessary and were properly made. Todd v. Myers, 40 Cal. 357. As between father and son, the usual presumption of wages does not obtain, but it is presumed that the services of the one for the other were perfonned on account of the relation, and not for pay, and no obligation to pay is implied (Harris v. Currier, 44 Vt. 468); and this rale applies notwithstanding the son previously left his father under an agreement, giving him his time and earnings, but afterward returned (Albee v. Albee, 3 Oreg. 321). Where a husband and wife were living with his mother, and during the latter's illness the wife took care of her, it was presumed that the wife rendered the services in behalf of her husband. Morgan V. BoUes, 36 Conn. 175. A person accepting business within the line of his occu- pation will be presumed entitled to compensation, and the law will hold him to strict diligence within his business; but where the service rendered is outside his usual line, the presumption does not arise. Morrison u. Orr, 3 Stew. & P. 49. Church music in small country villages or hamlets being usually gratuitous, the 630 CHAl'. II.] MASTER AND SEKVAKT. * 435 being daily hired to be employed in domestic affairs, in the cul- tivation of land, in the building of houses, in the manufacture of materials furnished to be worked up, and upon chattels which have been bailed or delivered to the workman to be mended or repaired, (a) In order to constitute a contract of hiring and ser- vice, there must be either an express or an implied mutual en- gagement binding one party to employ and remunerate, and the other to serve, for some determinate term or period (ante, p. * 5). It has been said that if the employer merely covenants to pay so long as the servant continues to serve, leaving it optional either with the servant to serve, or with the emploj'er to employ, there is no contract of hiring and service, (b) But this decision has been doubted ; (c) and if the servant binds himself to serve for some * determinate term, and the employer [*435] expressly or impliedly covenants or promises to retain the servant in his service for the term, there is a contract of hiring and service. Where the plaintiff covenanted that his son should serve and continue with the defendant as his assistant in the art of a sur- geon-dentist for five years, and should execute and perform such work and service in the art as the defendant should direct, and the defendant covenanted with the plaintiff that he would, during the term of five years, in case the son should well and faith- fully serve, &c., pay him certain weekly wages, it was held that, as there was no express covenant on the part of the defendant to employ or retain the son in the defendant's service for five years, the defendant was at liberty to dismiss him whenever he pleased, and discontinue the payment of the weekly wages, (d) But this mere fact that one sings in a choir or plays on an instrument as an accompani- ment, during Sunday services, raises no implication of pecuniary liability against the corporate hod}'; but such service will be presumed to have been gratuitous; and to authorize a recovery for services as an organist, it must be clearly proved that there was an actual employment of the plaintiff by the defendant, and a promise binding on the corporate body to pay the plaintiff. Van Buren v. Ee- formed Church, 62 Barb. 495. (a) "Ostendit definitio, duo esse ge- (i) Williamson v. Taylor, 5 Q. B. nera locationis, remni unam, alteram 175. operarura seu faetorum." — Vin. Com. (c) Emmens v. Eldertou, 4 H. L. C. lib. 3, tit. 25, 757; Pandect. Pothier, lib. 624; 13 C. B. 495; "Whittle v. Frank- 19, tit. 2, art. 1. laud, 2 B. & S. 49; 31 L. J. M. C. 81. (d) Dunn v. Sayles, 5 Q. B. 685. 631 *436 CONTRACTS FOR SERVICES. [BOOK II. decision is not reconcilable with other authorities ; and it is apprehended that, wherever one party covenants to serve for a particular period, and the other covenants to pay him a salary or wages for the service during the term, there is an implied cove- nant on the part of the latter to retain the servant in his ser\ice during the term, provided the latter serves faithfully, and is guilty of no misconduct warranting a dismissal. Wliere it was agreed between the plaintiff and a joint-stock company that the plaintiff should be the permanent attorney of the company, and should receive and accept a salary of £100 a year in lieu of his annual bill of costs, and should for such salary advise and act for the company on all occasions, it was held that there was an implied contract on the part of the company to retain the attor- ney in their service for one year at least, and pay him the salary he had agreed to accept, but that the word " permanent " did not confer any durable appointment beyond the year, so as to pre- vent the employer from withdrawing the retainer, (e) Whenever one party agrees to retain or hire, and another agrees to serve for a certain term, at a specified salary, there is a contract of hiring and service, although the servant may never be called upon or required to do any work. There are many cases of hiring and employment of parties to serve in some par- ticular character or capacity where the servant is bound to serve if called upon, and is entitled to his salary by holding himself in readiness to serve, although his services are not called into requisition by the employer. In these cases there is a con- tinuous hiring or retainer; and the readiness and willingness to serve on the part of the servant are equivalent to actual service. [ * 436 ] * Authentication and Proof of the Contract. — A con- tract of hiring and service need not be authenticated by writing, unless the hiring exceeds a year in duration (ante, p. * 170) ; and if reduced into writing it need not be stamped, if it is a contract for the hii'e of " laborers, artificers, manufact- urers, or menial servants," and not a contract of apprenticeship (e) Emmens o. Elderton, 13 C. B. J. C. P. 84; Pilkington v. Scott, 15 M. 495; 4 H. L. C. 645; Reg. v. Welch, 2 & W. 660; M'Intyre v. Belcher, 32 L. Ell. & Bl. 362; Rust v. Nottidge, 1 Ell. J. C. V. 251. & Bl. 99; Hartley v. Cumniings, 17 L. 632 CHAP. II.] MASTER AND SERVANT. * 436 {post, p. * 453). In the absence of an express contract between the parties, a hiring may be presumed from the mere fact of the service, unless the service has been with near relations. If a man, for example, serves a stranger in the capacity of a clerk, or of a menial servant, or servant in husbandry, for a continued period, the law presumes that the service has been rendered in fulfilment of a contract of hiring and service ; and if the party has served without anything being said as to wages, the law pre- sumes that there was a contract for customary and reasonable wages. (/) But if the service has been with the parent or uncle, or other near relation of the party serving, a hiring cannot be implied or presumed from it, but an express hiring must be proved in order to support a claim for wages ; for the law regards services rendered by near relations to one another as gratuitous acts of kindness and charity, and does not presume that they are to be paid for unless there is an express contract to that effect, [g) And if a poor person is taken out of charity and provided with food, lodging, clothes, and necessaries, and set to work, no con- tract of hiring and service is implied therefrom, however long the party may continue to serve. (A) Yearly Hirings — Domestic Servants. — When the employment of a servant is of a permanent nature, and annual wages are reserved, the hiring is a yearly hiring ; and when the servant is not a household or domestic servant, the hiring cannot be put an end to by either party without the consent of the other, before the termination of the current year, (i) A hiring of a servant in husbandry, for example, is an indefeasible yearly hiring, anal- ogous to a yearly tenancy. At the end of each year a new con- tract arises to serve for the year commencing, which will continue as long as the parties may please, and can only be terminated at the end of the current year, unless the servant is guilty of misconduct. (^■) A general hiring of a clerk, foreman, journey- (/) Lord EUenborough, C. J. 15 Bott. 209, o. 273; Cald. 521; R. v. East, 454; Phillips v. Jones, 1 Ad. & E. Stokesley, 6 T. E. 757. 333. (h) E. -u. Weyhill, 1 W. Bl. 206; 2 (g) Davies v. Davies, 9 C. & P. 87; Bott. 207, case 271. Gregory Stoke v. Pitminstev, 2 Bott. P. (i) Emmens v. Elderton, ante, p. L. C. 206, case 269; E. v. Sow., 1 B. & *435. Aid. 181; E. 0. St. Mary Guildford, 2 {k) R. ./.Lyth, 5 T. E. 337; 3 ib. 76. 633 * 437 CONTRACTS FOE SERVICES. [BOOK II. man, or traveller, at annual wages, " with board in the house," is, in general, a yearly hiring, which can only be put an [ * 437 ] end to by consent, or at * the expiration of the current year; (/) and so also is a general hiring of a gov- erness at annual wages, with board in the house ; (m) but the duration of the term of hiring will be regulated and controlled by custom and usage and the surrounding circumstances of the case, (m) a general hiring of postilions and ostlers upon the terms that they are to receive board and lodging in the house, and the vails or perquisites of the stables in lieu of wages, is a yearly hiring ; (o) and so also is a general hiring of a ware- houseman, "the employer engaging to pay j£l2 10s. per month for the first year, and advance ,£10 per annum until the salary should be £180 ;"(^) also a general hiring of editors, sub- editors, reporters, and other persons regularly employed upon old-standing and permanently established newspapers and peri- odicals, (q) Reservations of quarterly, monthly, or weekly wages are not inconsistent with a yearly hiring. " Whether the wages be to be paid by the week or the year cannot make any alteration in the duration of the service, if the contract were for a year;"(r) but if there has been no continued service for a lengthened period, and there is nothing in the nature of the employment, and no particular custom or usage leading neces- sarily to the conclusion that the hiring was for a year, the pay- ment of weekly or monthly wages raises a presumption in favor of a weekly or monthly hiring, (s) A " hiring for twelve months certain, and to continue from time to time until three months' notice in writing be given by either party to determine the same," is a hiring for a year certain only ; and either party is at liberty to put an end to it at the expiration of the first year, by giving (/) Beestonu.CoUyor, 12 Moore, 5.52; (n) Burr. Set. Cas. 759, No. 236; 2 E. V Batlieaston, Burr. Set. Cas. 823, Bott. 229, 230, pi. 294, 297. No. 257 ; Turner v. Robin.son, 5B.& Ad. (p) Fawcett r. Cash, 5 B. & A.l. 90S. 789; 2 N. & M. 829; Davis v. Marshall, (q) Holcroftt). Barber, 1 Car. & Kirw. 9 W. E. 520. 4; Baxters. Nurse, ib. 10; Williams v. (m) Todd V. Kerrich, 8 Exch. 151; Byrne, 2 N. & P. 139. 22 L. .T. Ex. 1. (r) Kenyon, C. J., 4 T. E. 246; E. (n) Fairman v. Oakford, 5 H. & N. v. Seaton, Cald. 440. 636; 29 L. J. Ex. 459; Green ?). Wright, (s) E. v. Pucklechnrch, 5 East, 384; 1 C. P. D. 591. Baxter v. Nurse, 7 So. N. E. 801; 6 M. 634 & Gr. 935. CHAP. II.] MASTER AND SERVANT. * 438 three months' previous notice, (t) It has also been held that an agreement " for twelve months certain, after which time either party should be at liberty to terminate the agreement by giving the other a three months' notice," can be determined at the end of the twelvemonth without notice, (u) Indefeasible and Defeasible Vearly Hirings — Month's Warning or a Month's Wages. — If by the custom or usage of trade, the hiring may be put an end to and the contract dissolved, by notice given by either of the parties, the hiring is a conditional or * defeasible yearly hiring, determinable [*438] by giving the customary notice at any time during the term. By the custom of particular trades a general hiring of a commercial traveller is a hiring for a year, subject to an implied understanding that either party may determine the engagement by giving three months' notice, (x) A general hiring of menial or household servants, such as cooks, scullions, housemaids, foot- men, butlers, coachmen, grooms, where no time is mentioned for the duration of the service, is a hiring for a year, and so on from year to year, defeasible by custom and usage, at the option of either of the parties, on giving a month's warning, or on the part of the master by paying or tendering a month's wages. If the contract is put into writing, the customary power of defeasance is impliedly annexed to the express terms of the written agree- ment, unless the custom is excluded by express words, (y) A servant may be a menial servant, and as such clothed with this implied power of defeasance, although he does not reside within the walls of the master's house. This has been held to be the case with a head gardener hired for a year at £100 wages, with a house in the master's grounds, and the privilege of taking in apprentices for a year at .£15 premium ;(«) also with a hunts- man engaged at a salary of £100 a year, with a house to live in and perquisites, (a) When a power of defeasance is vested in the parties either by [t] Brown v. Symons, 8 C. B. N. s. {;/) Johnson •... Blenkensop, 5 Jur. 208; 29 L.J. C. P. 251. 870. (u) Langton v. Carleton, L. K. 9 Ex. {z) Nowlan v. Ablett, 2 C. M. & R. 57 5^- '(x) Metzner v. Bolton, 9 Exch. 518; (a) Nicoll v. Greaves, 17 C. B. N. s. 23L.J. Ex. 130. 27; 33 L. J. C. P. 259. 635 *439 CONTRACTS FOE SERVICES. [BOOK II. custom or special agreement, or the contract is made defeas- ible upon the happening of a given event, the hiring is never- theless a yearly hiring ; so that, if the power of defeasance is not exercised, and the contract is permitted to run on, and the service to continue for a year, there is a year's hiring and ser- vice, which will gain a settlement under the poor laws, (b) " It is a yearly hiring, notwithstanding the power of determining it, if that is not exercised before the expiration of the year. The contingency not having happened, and the contract not having been defeated during the year, it inures after the year's service as a yearly hiring.'' (c) A servant may engage himself to serve for a certain determinate period, but may give the employer the option of determining the contract, and dismissing him at any period of the service. Where the engagement of a clerk or a superintendent was to be for three years, " at the option " [*439] of the employer, at a yearly salary, it was *lield that this was a contract binding the servant to serve three years, and giving the employer the option of determining the contract at the end of each year by a proper notice, but not of dismissing the servant at any time ; that the option to be exer- cised by the employer was whether the servant was to remain for one, two, or three years, and that if he was dismissed in the middle of a current year, he was entitled to compensation, id) Hiring by the Month and Week. — Where a journeyman mil- ler was hired "at monthly wages, with liberty to depart at a month's wages or a month's warning," the hiring was held to be a hiring by the month (e) ; but when the wages are reserved weekly with a proviso for a month's warning, the presumption is in favor of a conditional and defeasible yearly hiring. If there be anything in the contract to show that the hiring was intended to be for a year, then a reservation of weekly wages will not control that hiring. But if the payment of weekly wages be the only circumstance from which the duration of the (6) E. V. Atherton, Burr. Set. Cas. (c) R. u. Sandhurst, 7 B. & C. 562; 203, No. 71; R. V. Birdbrooke, 4 T. R. 1 M. & R. 101; R. v. Byker, 3 D. & R. 246; R. v. Farleigh v. Wallop, 1 B. & 336; 2 B. & C. 119; R. v. Lidney, Burr. Ad. 340, 342; R. v. New Windsor, Burr. Set. Cas. 1. Set. Gas. 22, No. 7; R. i). Gt. Yarmouth, (d) Down v. Pinto, 9 Excli. 327; 23 5 M. & S. 114; R. v. Northwold, 2 D. L. J. Ex. 103. 6 '^- 7S2. (e) E. D. Clare, 2 Bott. 229, pi. 295. 636 CHAP. II.] MASTER AND SERVANT. * 440 contract is to be collected, it must be taken to be only a weekly- hiring. (/) " The mere arrangement," observes Bay ley, J., " that the wages shall be at one rate in the summer, and at another in the winter, does not show that the parties contemplated a ser- vice to endure through the summer and winter, and therefore that they intended a hiring for a year ; but shows only that they intended that, if the servant, being hired at weekly wages, should remain till the summer, he should then have so mxich per week. The true meaning of such an arrangement is merely this : that the servant's wages as a weekly servant are to be regulated by the seasons." {g) But if the nature of the em- ployment or the terms of the contract are inconsistent with a weekly hiring, the reservation of weekly wages will be regarded merely as a mode of payment, and not as an indication of the duration of the contract. Qi) Thus the presumption of a week- ly hiring resulting from a reservation of weekly wages is rebut- ted by a stipulation for a fortnight's or a month's notice to quit, (t) Service at Will. — A boy was employed to work " for meat, drink, and clothes, as long as he had a mind to stop," and served for two years iipon these terms ; and the service was held to be a mere* service at will. (A;) So where an [*440] assistant workman was "to come and go when he liked," and an ostler and his master were " to be at liberty to separate when they pleased," the service was held to be a ser- vice at will. (I) In these cases there is in truth no contract of hiring at all. (m) The transaction amounts merely to an au- thority to serve upon certain terms. If the work is actually (/) Ellenborough, C. J., E. v. Dod- R. v. Dodderhill, 3 M. & S. 243; E. u. derhill, 3 M. & S. 245; Burr. Set. Cas. Lambeth, 4 ib. 315. 280, No. 98; R. v. Puckleehurch, 5 East, (h) Davis v. Marshall, 9 W. R. 520. 384; R. V. Hanbuiy, 2 East, 425; R. v. (i) R. v. Hampreston, 5 T. R. 208; Mitphara, 12 East, 352; Ashurst, J., R. v. St. Andrew Pershore, 8 B. & C. R. V. Newton Toney, 2 T. R. 455; R. v. 679; R. v. Birdbrooke, 4 T. R. 246; E. Odiham, ib. 622; Baxter v. Nurse, 7 Sc. v. Gt. Yarmouth, 5 M. & S. 117. N. E. 801; 6 M. & Gr. 935; R. v. {k) R. t). Christ's Parish, York, 3 B. Elstack, 2 Bott. 227, pi. 292; E. v. Ded- & C. 459; 5 D. & R. 314. ham, 2 Bott. 227, pi. 292; R. v. War- (I) R. v. Gt. Bowden, 7 B. & C. minster, 9 D. & R. 70; Evans v. Roe, 249. L. R. 7 C. P. 138. (m) E. v. St. Matthews, Ipswich, 3 (g) E. 0. Rolvendon, 1 M. & R. 691; T. E. 449. 637 *441 CONTRACTS FOR SERVICES. [BOOK II. performed and accepted, the law raises an implied promise of remuneration from the employer to the workman ; but the for- mer is not bound to provide the work, nor is the latter bound to execute it. Rights and Liabilities of Master and Servant. — It is the first duty of the master, after the contract of hiring and service has been entered into, to take the servant into his employ, and enable him to earn the hire or reward agreed to be paid ; and if he neglects so to do, he renders himself liable forthwith to an action for a breach of contract. " The master is bound to pro- vide for the safety of his servant in the course of his employ- ment to the best of his judgment, information, and belief; but the law does not imply, from the mere relation of master and servant, an obligation on the part of the master to take more care of the servant than he may reasonably be expected to take of himself." (w) If the servant sustains injury in the course of his employment from the negligence of the master, the latter will be responsible in damages, (o) although there is no implied agreement by the master in an ordinary contract of hiring and service not to expose the servant to extraordinary risks in the course of his employment ; {p) but the master is not liable for surgical attendance and medicine rendered to a servant who has been injured in the execution of his master's service, unless the surgeon has been called in by the master's orders ; {q) nor for injuries sustained from the unseaworthiness of a vessel in which the servant is employed ; (r) nor for injuries which one servant has sustained through the negligence of another servant of the same employer (as we shall presently see), provided the master provides proper machinery, (s) and takes care that his [* 441] servants are persons of * competent skill and ordinary {n) Eileyw. Baxendale, SO L. J. Ex. iesoti, 4 Macq. H. L. C. 215; Mellors v. 87; Priestly v. Fowler, 3 M. & W. 5; Shan-, 1 B. & S. 437; 30 L. J. Q. B. I'aterson v. Wallace, 1 Maeq. H. L. C. 333. 748; Daviess;. England, 33 L. J. Q. B. (p) Riley v. Baxendale, 6 H. & N. 321; as to injuries from iinfenced ma- 445 ; 30 L. J. Ex. 87. chinery, see Holmes v. Clarke, 30 L. J. (q) Wannell v. Adney, 3 B. & P. 247; Ex. 135; 31 L. J. Ex. 356; 7 H. & N. Cooper i). Phillips, 4 C.\& P. 581. ^37. (r) Couch v. Steel, 23 L. J. Q. B. (o) Ashworth v. Stanwix, 30 L. J. 121. Q. B. 183; Clarke v. Holmes, 7 H. & N. (s) Searle v. Lindsay, 11 C. B. N. s. 937; 31 L. J. Ex. 356; Weemsj v. Math- 429; 31 L. J. C. P. 106. 638 CHAP. II.] MASTER AND SERVANT. * 441 carefulness ; (t) for a servant, when he engages to serve a master, undertakes as between him and his master to run all the ordi- nary risks of the service, including the risk of negligence upon the part of a fellow-servant, when he is acting in " the discharge of his duty as servant of him who is the common master of both." (u) The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which danger may be incurred, he is just as likely to be acquainted with the probability and extent of it as the master. The master, therefore, is not responsible for injuries sustained by his servant through the viciousness of the horse which the ser- vant is employed to groom, or through the breaking down of a van or carriage in which the servant is directed by the master to ride or drive, or from the employer's keeping an insufficient staff of servants for the performance of the work he has to do, (x) or through the use of dangerous machinery, with the use of which the servant is, or professes to be acquainted, and which he has voluntarily undertaken to use, (y) or for the dangers attendant upon the mounting of scaffolds, or unfinished staircases and landings, which the workman has voluntarily undertaken to mount, with as much knowledge of the attendant risk as the person who employs him. (z) Where the master's coach broke down through the negligence of a coach-maker who had contracted with the master to furnish the latter with sound road-worthy coaches, and repair them, and keep them in good working order, and the coachman was muti- lated and maimed for life, it was held that he had no remedy for (t) Potter V. Faulkner, 1 B. & S. who are fellow servants, see Hall v. 800; 31 L. J. Q. B. 30; Senior v. Ward, Johnson, 3 H. & C. 589; 34 L. J. Ex. 1 El. & El. 385. 222, N. 32; Feltham v. England, L. R. (u) Hutchinson v. York, Newc. & 2 Q. B. 33; 36 L. J. Q. B. 14; Warbur- Bevw. Ry. Co., 5 Exch. 343; 19 L. J. ton v. Great Western Ry. Co., L. R. 2 Ex. 296; Wigmore v. Jay, ib. 300; 5 Ex. 30; 36 L. J. Ex, 9. Exch. 354; Seymour?). Maddox, 20 L.J. (x) Skipp v. East. Co. Ry. Co., 9 Q. B. 327; 16 Q. B. 326; Lovegiwe v. Exch. 223. L. B. & S. C. Ry. Co., 16 C. B. N. s. (y) Dyneni;. Leach, 26 Law J. Exch. 669; 33 L. J. C. P. 329; Waller r. The 221. S. E. Ry. Co., 3 H. & C, 102; 32 L. J. {z) Assop v. Yates, 2 H. & N. 770; Ex. 205; Murphy v. Caralli, 3 H. & C. 27 Law J. Exch. 156; Griffithsu. Gidlow, 462; 34 L. J. Ex. 14; Tunney v. Mid- ib. 404; Potts v. Plunkett, 9 Ir. C. L. R. land Ry. Co., L. R. 1 C. P. 291. As to 290. 639 *442 CONTRACTS FOR SERVICES. [BOOK II. the injury. The law does not permit him to recover damages from his own master and employer. Neither can he sue the coach-maker, whose negligence occasioned the injury. "It is no doubt a hardship upon the plaintiff," observes Eolfe, B,, " to be without a remedy, but by that consideration we ought [*442 ] not to be * influenced." (a) " There would be no end of actions if we were to hold that a person having once done a piece of work carelessly, should, independently of honesty of purpose " (or contract), " be fixed with liability in this way by reason of bad materials or insufficient fastening." (b) If a man employs ignorant, inexperienced workmen in danger- ous employments, and exposes them improperly to risks, of which he is cognizant, and whicli are not known to the ignorant work- man, he will be liable for the consequences of his misconduct, (c) For personal negligence of the master, whereby injury is occa- sioned to the servant, the master will be liable, (d) And where rules are framed by employers for the purpose of regulating the management and exercise of a dangerous employment, and these rules are carelessly or improperly framed, so as to cause dangers and risks, which might be guarded against and prevented by proper rules carefully prepared, the employers will be responsible for the consequences of their negligence, (e) Where statutory regulations exist for the management of a colliery, (/) and secur- ing the safety of the workmen, and these rules are culpably neglected with the knowledge of the owner of the mine, the latter will be responsible for the consequences of his neglect of duty, unless the person injured has brought the mischief upon himself by his own negligence, (g) And the same rules apply (a) Winterbottom v. Wright, 10 M. (d) Ashworth i). Stanwix, 30 Law J. & W. 115; Prie.stlpy )i. Fowler, 3 M. & W. Q. B. 183. 6; Kiley v. Ba.xendfik, 6 H. & N. 455; (c) Vose v. Lane. & York. Ey. Co., 2 30 Law J. E.xch. 87; Potts v. Port Car- H. & N. 728; 35 & 36 Vict. c. 76. lisle, &c. T!y. Co., 2 Law T. R. x. s. (/) As to ventilation of collieries, see 283; Heaven v. Peniler, 9 Q. B. D. 302. Brough v. Homfray, L. P. 3 Q. B. 771; (6) Per Willes, J., Collis v. Selden, as to statutory regulations under the L. R. 3 C. P. 498. factory acts, see 41 & 42 Vict. c. 16. (c) Bartonshill Coal Co. v. Reid, 3 (g) Caswell v. Worth, 5 Ell. & Bl. Macq. 295; Mellors v. Shaw, 30 Law J. 855; Senior v. Ward, 1 Ell. & Ell. 385; C. P. 333; Weems v. Matthieson, 4 28 Law J. Q. B. 139. Macq. H. L. C. 215; Farrant v. Barnes, 31 Law J. C. P. 139. 640 CHAP. II.] MASTER AND SERVANT. * 443 •where machinery is required by act of Parliament to be pro- tected, and the master will be responsible for the want of such protection, unless the accident has been caused by the negligence of the servant himself. (A) Where the dangerous nature of the employment is obvious, the servant must necessarily be taken to have known it ; but even if it be known to the servant, yet that does not make him a " volunteer," so as to exonerate his masters from their liability for breach of a statutory duty to protect the servant from the dangerous thing, {hh) Where the Employers' Liability Act, 1880, applies, the law, as above stated, will be modified. See provisions of the act, post. If a rule established for securing the safety of workmen in a dangerous employment is habitually violated, to the knowledge of *the workman himself, the latter has no [*443] ground to recover damages from the employer for inju- ries sustained from the non-observance of the rule. {%) A declaration alleging that the plaintiff was the servant of the defendant, and that the defendant ordered the plaintiff to ascend and use certain scaffolding, &c., well knowing it to be dangerous and unfit for use, and that the plaintiff, in obedience to the order of the defendant, used the scaffolding, &c., believing it to be safe and fit for use, and not knowing the contrary, and not having the same means that the plaintiff had of forming a correct opinion upon its sufficiency and safety, and tliat the scaffolding, &c., by reason of its being unsafe and unfit for use, gave way with the plaintiff upon it, and precipitated the plaintiff upon the ground, &c., discloses a good cause of action, (k) If hidden and secret dangers exist upon the master's premises, known to him and unknown to his workmen, it is his duty to disclose them to the latter, that they may take precautions against them. (/) If a master was to order his servant to take a lighted candle amongst packages known by him, but not known by the servant, to contain gunpowder, the master would be re- sponsible for any injury sustained by the latter from the un- (h) Post, p. * 444. (Tc) Williams v. Clougli, 3 H. & N. (M) Britton v. G. W. Cotton Co., 258; 27 L. J. Ex. 32,5. L. R. 7 Ex. 130. (I) Williams «. Glough, supra ; Mel- (i) Senior v. Ward, 1 El. & El. 385; lors v. Shaw, 1 B. & S. 444; Ashworth 28 L. J. Q. B. 139. V. Stanwix, 30 Law J. Q. B. 183. VOL. I. 41 641 *444 CONTRACTS FOR SERVICES. [BOOK II. known danger and unexpected risk to which he had been ex- posed. So if a servant be employed to cut up diseased cattle, (m) It is otherwise if the servant accepts of the employment know- ing of the risk he runs (see infra). If the danger is unknown to the master, and there is no negligence on his part, he cannot be made responsible in damages ; (?i) as where a floor of a ware- house gave way and injured a workman who was thereon, (o) So if a railway company employs workmen upon its tunnels, sidings, or stations, it is guilty of negligence if it conducts its traffic so as to expose the workmen to unexpected and unfore- seen dangers which they had no means of guarding again.st. (^ji) Exemption of the Master from Liability when the Danger is iinowu to the Servant. — But the master is not responsible for the dangerous state of his premises, if those dangers are known to the servant, and the latter has accepted the employment knowing of the attendant risks, and having an opportunity of guarding against them by his own vigilance and care. [ *444] Where the plaintiff alleged * that he had been hired by the defendant to perform at the defendant's theatre, and that on part of the stage there was a hole in the floor, along wliich the plaintiff had to jDass in the discharge of his duty as a performer, and that it was the duty of the defendant to light the floor sufficiently, so as to prevent accidents to those who passed along it, it was held that no such duty was cast upon the defend- ant. " A person," observes Erie, J., " must make his own choice whether he will accept employment upon premises in this con- dition ; and if he do accept such employment, he must also make his own choice whether he will pass along the floor in the dark, or carry a light. If he sustains an injury in consequence of the premises not being lighted, he has no right of action against the master who has not contracted that the floor shall be lighted." If the servant wishes the premises to be kept in any particular state with respect to lighting and fencing, he must provide for it by express contract, {rj) (m) Daviess. England, 33 L. J. Q. B. (p) Vose v. Lane. & York. Ey. Co., 321. 2 H. & N. 728: 27 Law J. Excli. (ft) Potts V. Port Carlisle, &c. Co., 249. 2 Law T. R. K. K. 283; 8 W. E. 524. (q) Seymour u Marldox, 16 Q. B. (o) Brown v. Accrington Cotton Co., 332; Bolch v. Smith, 7 H. & N. 736 ; 31 34 L. J. Exch. 208. Law J. Q. B. 201; Robertson r. Adam- 64, 9 CHAP. II,] MASTER AND SERVANT. * 445 ■Where the 'Workman is employed in the XJse of Dangerous Machinery furnished by the employer, and is, or professes to be, acquainted with the use of the machinery, and the care necessary to be taken to guard against accident, and notwithstanding this, sustains injury from his own want of care and caution in the use of it, he has, of course, no ground of action against the em- ployer, (r) But if an act of Parliament requires machinery to be fenced, and it is left unfenced, and the servant complains, and the master induces him to continue his work by telling him that proper protection shall be afforded, the master takes upon him- self the responsibility of any accident that may occur, (s) Injuries to Workmen from defective Hoisting-Tackle in Mines and Insecure Scaffolding and Ladders. — It has been held, in a Scotch case in the House of Lords, that the owner of a mine is bound to exercise ordinary care and vigilance to keep the shaft of the mine in a safe state, and the machinery for lifting people from the mine, and lowering them into it, in secure condition, (t) And it is in all cases the master's duty to be careful that his workman be not induced to work under the notion that the tackle, scaffolding, or rope with which he works is secure, when the master knows, or has reasonable ground for believing, that it is unsafe and dangerous. If he interferes in the conduct and management of the work himself, he is bound to select sound and safe materials ; and if he * knowingly allows [*445] rotten timber, rotten poles, or rotten ropes to be used in the construction of a scaffold, and injury is sustained therefrom by his servants or workmen, he will be responsible in dam- ages, (m) But if he does not in any way interfere himself, and employs a competent foreman to superintend the work and select the materials, and the foreman selects unsound and unsafe materials, or knows that those he has selected have become unsafe, which cause injury to the workmen working under the son, 24 Sc. Sess. Cass. 1231; Potts v. 4 Macq. H. L. C. 215. See also Britten Plunkett, 9 Ir. C. L. R. 290. v. G. W. Cotton Co., ante p- * 142. (?•) Dynen v. Leach, 26 Law J. Exch. (t) Brydon v. Stewart, 2 Macq. 34. 221 ; Barton's Hill Coal Co. v. Keid, 3 {u) Roberts v. Smith, 26 Law J. Macq. 294; see "Watling v. Oastler, L. Exch. 319; 2 H. & N. 213; Senior v. R. 6 Exch. 73. "Ward, 28 Law J. Q. B. 139; Mellors v. (s) Holmes v. Clarke, 30 Law J. Exch. Shaw, 1 B. & S. 444. 135; 31 ib. 356; Weems o. Mathieson, 643 * 445 CONTRACTS FOR SERVICES. [BOOK II foreman's directions, the master is not responsible, as the default is not in him, but in the foreman and fellow-servant of the injured workman, and the case then ranges itself with that class of cases where it has been iield, that the master is not respon- sible for injuries to one fellow-servant caused by the negligence of another fellow-servant in his employ, (x) Injuries to one FelloTv-Servant from the Negligence of another FeUow-Servant. — Where several servants are emjiloyed by the same master in one common employment, the master is not responsible for injury resulting to one of them from the negli- gence of another, provided the master has taken due care not to expose his servant to unreasonable risks, (y) and has been guilty of no want of care in the selection of proper servants, (z) The principle laid down is, that a servant, when he engages to serve a master, undertakes, as between him and his master, to run all the ordinary risks of the service ; and this includes the risk of negligence on the part of a fellow-servant, whenever he is acting in discharge of his duty as servant of him who is the common master of both ; (a) and when the risk of injury from the negli- gence of the one is so much a natural and necessary consequence of the employment AA-hich the other accepts, that it must be included in the risks which are to be considered in his waarty has absolutely refused to perform his part of the contract, he puts it in the power of the other party either to sue for a breach of it, or to treat the con- tract as rescinded or abandoned, and sue on a quantum meruit for the work actually done, {i) If the party elects to treat the contract as a subsisting contract, and to sue for a breach of it, he (e) 1 Dig. lib. 50, tit. 17, 1. 161 ; 7 Eq. 550; Ex parte Logan, 9 Eq. Domat, lib. 1, tit. 1, sect. 4, xviii. ; 149. Pothier, Obligations, No. 212 ; Holt, C. {g) Hochstert). De La Tour, 2 Ell. & J., Lancashire v. Killingworth, 1 Ld. Bl. 678; 22 L. J. Q. B. 455; and see Raym. 6S7; Smith u. Wilson, 8 East, Frost v. Knight, L. R. 7 Ex. Ill; 41 443. L. J. Ex. 78. (/) Parke, B., Emmen.'i i). Alderton, (/t) Fewings v. Tisdal, 1 Exch. 295; ante p. *434; Fewings v. Tisdal, 1 17 L. J. Ex. 19. Exch. 295; Erie, J., Goodman v. Pocock, (i) De Bernardy v. Harding, 8 Exch. 15 Q. B. 583 ; Yelland, Ex parte, L. E. 822; Prickett v. Badger, 1 C. B. N. s. i Eq. 350; Ex parte Clarke, L. R. 305. 651 *452 CONTKACTS FOE SEEVICES. [BOOK II. cannot afterward go on a quantum meruit as for an abandoned contract. If, for example, a servant hired by the year at yearly wages, payable quarterly, brings an action upon the contract, and recovers damages for a wrongful dismissal, he cannot afterward maintain an action for wages 2?ro rata up to the time of his dis- missal. The damages, therefore, in the action on the special contract should be assessed so as to include the wages up to the time of the dismissal. Qc) When the contract is for a year's service, at wages payable yearly, the contract is entire and indi- visible, and the servant or workman cannot recover from the employer wages pro rata, unless the contract has been [*452] rescinded or abandoned, or * has been put an end to by the exercise of a power of defeasance vested in the parties ; so that if the servant dies in the middle of the year, his personal representati\'es will not be entitled to recover a pro- portionate part of the salary in respect of the time he actually served ; (/) and if he is himself guilty of such misconduct as entitles the master to dissolve the contract and dismiss him from his service, he will lose all right to wages in respect of the portion of the year he has actually served. (;«) But if the con- tract is put an end to by virtue of a power of defeasance vested in either of the parties by custom or by agreement, the wages are apportionable, and the servant must be paid pro rata up to the time of his departure. If, liowever, the contract is dissolved by mutual consent, and nothing is said of bygone services or wages not due at the time of the dissolution of the contract, no new contract arises by implication of law to pay wages -pro rata., iji) Amount of Wages recoverable — Deductions. — If the amount (/.) Goodman v. Poeock, 15 Q. B. v. Boulnois, 2 C. & P. 512; Turner v. 576; 19 L. J. Q. B. 410. Robinson, 5 B. & Ad. 789; Ridgway v. (I) Countess of Plymouth v. Throg- Hung. M. Co., 3 Ad. &E. 171; Lilley v. morton, Salk. 65; 3 Mod. 153; Cuttert). Elwin, 17 L. J. Q. B. 135: Poth. Powell, 6 T. R. 326. Louage, Xo. 174. (?«) " Car riens est due tanque le fin (ti) Lamburn v. Cruden, 2 Sc. N. R. de I'an, quod nota, et le contract est 534; 2 M. & Gr. 253; Alitcr, if there entier, et ne poet ester sever." Bro. was no hiring for a year, or the master Abr. foh 57 (Lahorcr), pi. 48; ili. fol. sends the servant away; Baik'.y ■». Rira- 170, pi. 31; Apportionmrnl, 26, pi. 13; mell, 1 M. & W. 506; Phillips i;. Jones, Vin. Abr. (Jpportiomncnt), 8 & 9; Spain 1 Ad. & E. 333. V. Arnott, 2 Stark. N. P. 256; Huttman 652 CHAP. II.] MASTER AND SERVANT. * 453 of wages to be paid has not been settled and agreed upon by the contract, there is an implied promise on the part of the employer to pay wages according to the customary and reasonable rate of remuneration. The master cannot deduct from wages money paid by him. to effect the servant's cure from a dangerous ill- ness, (o) The wages in certain trades, moreover, cannot in gen- eral be lawfully paid otherwise than in the current coin of the realm {post, p. * 1167). Presumption of Payment of Wages. — If a servant has left a considerable time without claiming wages, the presumption is that all the wages have been paid, (p) And if it is usual in the case of particular classes of servants and workmen to pay the wages weekly or monthly, and many weeks or months have elapsed without any claim or demand on the part of the servant, there is a ^mma facie presumption of payment, {q) Jurisdiction of County Court and of Justices. — The acts em- powering justices to deal with disputes between various sorts of servants and their master having been repealed by the Conspiracy * and Protection of Property Act, 1875 (r), [*453] an act was passed in the same session, (s) giving power to county courts and justices to deal with them. Breach of a Contract of Service involving Injury to others.- — A wilful breach of contract to supply gas or water is subject to a penalty, and so is a wilful breach of any contract of service, the probable consequence of which will be to do injury to others or their property, {t) Dissolution of the Contract by the Death of the Parties. — A contract of hiring and service is dissolved by the death of the (o) Sellen v. Norman, 4 C. & P. 2 is repealed, see 38 & 39 Vict. c. 86, 80. sect. 17); cutlers, 57 Geo. III., u. 115 (p) Sellen v. N'orraan, 4 C. & P. 81; colliers, 57 Geo. III. c. 122; dyers, hat Evans v. Birch, 3 Campb. 10; Pai-ke, makers, &c., 22 Geo. II. c. 27; bargees, B., Gough V. Findon, 7 Exch. 50. &c., on Thames, 2 & 3 Vict. c. 71, sect (?) Abbott, C. J., 4 C. &P. 81, n. 37; clothiers and weavers, 30 Geo. II (r) 38 & 39 Vict. u. 86, sect. 17. c. 12; on the interpretation of the stat (s) 38 & 39 Vict. c. 90; with respect ute, see the cases ofWarburton v. Hey to disputes with other sorts of servants, worth, 6 Q. E. D. 1; Grainger v, Ainsley, the following are some of the statutes 6 Q. B. D. 182. relating to them : iron trade, 1 Anne, st. (f) 38 & 39 Vict. t. 86, sects. 4, 5. 2, c. 22, sect. 4 ; woolcombers and weavers, 12 Geo. I. a. 34 (part of sect. 653 *453 CONTRACTS FOE SERVICES. [BOOK II. master or servant, (u) If the contract is made with a firm in partnership to serve the firm for a certain term,' the contract is dissolved by the death of one of the partners, (x) Seamen's Wages.^ — By the 17 & 18 Vict. c. 104, amended by 43 & 44 A^ict. c. 16, a summary remedy is provided for the re- covery of seamen's vrages which are not to be dependent on the ship's earning freight, and in case of the death of the seaman, are to be apportioned and paid in manner therein provided (sects. 181-204). (if) The master is liable, the ship is liable, and the owner is liable for the mariner's wages, (s) When seamen enter into articles to serve for a voyage or for a certain term, a contract by the master to pay increased wages for the services they are by the articles bound to render, is nugatory and void, (a) A seaman's contract of service may be terminated either by final abandonment of the ship, or by discharge given by the master. (&) By the Merchant Shipping Act, 1876, (c) in every contract of service between the owner of a ship and the master or any sea- man, and in every instrument of apprenticeship, there is to be implied an obligation on the owner and master, that the owner, master, and agents, and every agent, shall use all reasonable means to insure the seaworthiness of the ship. Of Contracts of Apprenticeship.^ — When the employer exer- cises some trade, craft, or mystery, and it is made a term of the 1 For the legislative provisions respecting seamen, see U. S. Rev. St. (2d ed. 1878) tit. 53, particularly c. 2, Shipment; c. 3, Wages and effects; c. 4, Dis- charge ; c. 5, Protection and relief ; also schedule annexed to c. 7, at p. 894. For the decisions upon the various sections of this title, see Desty, Commerce and Navigation, 142-196, and for a fuller statement of the same. Abb. Nat. Dig. tit. Seamen. See further, Desty, Sliipp. & Adra., particularly c. 8, Seamen ; 2°Pars. Shipp. & Adm., particularly c. 15, Of the seamen ; 1 Pars. Contr., u. 19, sect. 3, p. 389; 1 Schnuler, Pers. Prop. 400; 1 Story, Contr. sects. 185-199. - As to the contract of apprenticeship, see W^ood, Mast. & S., c. 2; Schouler, Dora. Rel. (3d ed. 1882) sects. 457, 4S7; also 335; Reeve, Don^. Rel. 341-345; Tyler, Inf. & Cov. (2d ed. 1882) sects. 97-106; U. S. Dig. tit. Jpijrentices. Recent cases : On the validity and sufficiency of indentures of apprenticeship. {u) Farrow v. Wilson, L. R. 4 C. P. (c) The Stephen Wright, 12 Jur. 732. 744; 38 L. J. C. P. 326. („) Ante, p. *4; Harris v. Carter, (.(■) Ta,sker v. Sheplierd, 6 11. & N. 23 L. J. Q. B. 295. 575; 30 L. J. Ex. 207. (S) The Warrior, 1 Lush. 476. iy) See also the 24 Vict. c. 10, and (c) 39 & 40 Vict. c. 80, sect. 5; see the 25 & 26 Vict. c. 63, sect. 18, et scq. Thompson v. Farrer, 9 Q. B. D. 372. 654 CHAP. II.] MASTER AND SERVANT. * 454 contract that he shall teach as well as employ and remunerate the servant for some specific period in return for the service rendered, the * contract amounts to an appren- [*454] ticeship, a term derived from the French word apprendre, to learn. Every contract to serve on the one hand, and to em- ploy and teach or instruct on the other, amounts to a contract of apprenticeship, and must be duly staniped. (d) If there is an engagement on the part of the servant to serve and to learn, but no express or implied engagement on the part of the employer to teach, so that no action can be maintained upon the contract against the latter for neglecting to teach, the contract is a con- tract of hiring and service only, and not a contract of appren- ticeship, (e) It is not necessary that the words " to learn " and " to teach " should be used by the parties in framing their con- tract ; for an agreement to take aud maintain a person " after the manner of an apprentice '' will constitute an apprenticeship. Nor need the word " apprentice " be used ; for wherever it ap- pears to ha,ve been the intention of the parties that the one was to teach and the other to learn, the contract will be a contract of McKimmey v. McKiramey, 52 Ala. 102; Cockran v. State, 46 Ala. 714; Owen v. State, 48 Ala. 328; Cannon i). Stuart, 3 Houst. 223; State v. Hooper, 1 Houst. Crim. 17; Ballenger i;. MoLain, 54 Ga. 159; Ford v. McVay, 55 111. 119; Hun- sucker «. Elmore, 54 Ind. 209; Doane f. Covel, 56 Me. 527; Fisher i). Lunger, 33 N. J. L. 100; People v. Hoster, 14 Abb. Pr. x. s. 414; People v. New York Juve- nile Asylum, 2 Thoinp. &C. 475; Commonwealth v. Atkinson, 8 Phila. 375. On the power and duty to bind out children as apprentices (Owen v. State, 48 Ala. 328; Mitchell v. McElvin, 45 Ga. 558; Howry v. Callowey, 48 Mi.ss. 587; People'!). Weissenbach, 60 N. Y. 385; People v. Hoster, 14 Abb. Pr. K. s. 414; People V. New York Juvenile Asylum, 2 Thomp. & C. 475; Spears v. Snell, 74 N. C. 210; Timmins v. Lacy, 30 Tex. 115); to the Shakers (People v. Gates, 43 N. Y. 40). The apprenticing of a negro must not infringe the U. S. Civil Eights stat- utes. Matter of Turner, 1 Abb. Pr. N. s. 84. As to assignment of indentures of apprenticeship. Biggs v. Harris, 64 N. C. 413. But the fatlier's right to his child's services is assignable. Ford v. McVay, 55 111. 119. What is an apprentice's residence. Maddoxt'. State, 32 Ind. 111. Eeasonableness of master's requirements. McPeck v. Moore, 51 Vt. 269. The relation is dissolved' by the apprentice's enlistment. Johnson v. Dodd, 56 N. Y. 76. Apprentice's right to maintain action against his master for breach of inden- tures. Cann v. Williams, 3 Houst. 78; Kuhlman v. Blow, 31 Tex. 628. Master's rights against an absconding apprentice, and those aiding or harboring him, see State V. Hooper, 1 Houst. Crim. 1 7 ; State v. Owens, ib. 72 ; Bard well v. Purring- ton, 107 Mass. 419. (d) R. V. Nether Enutsford, 1 B. & (e.) U. v. Shinfield, 14 East, 541; E. Ad. 726. V. Burbach, 1 M. & S. 370. 655 *455 CONTEACTS FOR SEE VICES. [BOOK II. apprenticeship, whatever may be the words used to express that intention. (/) As the contract is always made to last for more than one year, it must be authenticated by writing, signed by the party to be charged therewith {ante, p. * 170). By the 5 Eliz. c. 4, sect. 25 (repealed), the binding of an apprentice for the purpose of exercising trades was required to be made by indenture ; but now, by the 54 Geo. III. c. 96, sect. 2, it is enacted that it shall be lawful for any person to take or retain or become an appren- tice, though not according to the 25th, 30th, and 41st sections of the statute of Elizabeth, and that indentures, deeds, and agree- ments in writing entered into for that purpose, which would be otherwise invalid and ineffectual, shall be valid and effectual ; but it is provided that the enactment shall not affect the imme- morial customs of towns or by-laws of corporations. It is essen- tial to the validity of the contract tliat the consideration or premium be duly set forth upon the face of the instrument, in order that the proper amount of stamp duty may be secured thereon, {g) An indenture apprenticeship is sufficiently executed by the apprentice desiring a bystander to write his name for him opposite the seal, and by his then taking the deed and delivering it to his master, (/i) Rights and Liabilities of Parties to Indentures of Apprentice- ship. — An infant above the age of fourteen, and unmarried, is by the custom of London responsible upon covenants contained in indentures of apprenticeship executed by him just the [*455] same as if * he were of full age;(t) but he is by the common law, where the apprenticeship is not within the city of London, exempt from all liability ex contractu, by reason of his minority {ante, p. * 120). Therefore it is that his friends ordinarily become bound for his faithful service and good conduct during the period of the apprenticeship. The parties who covenant for the continued service and good conduct of an infant apprentice are not responsible upon their covenants for trifling and pardonable instances of misconduct, such as stay- ing out on Sunday evenings half an hour beyond the time (/) E. V. Wishford, 5 N. & M. 540. (7i) R. v. Longnor, 4 B. & Ad. 649. (g) E. V. Keynshani, 5 East, 311; (i) Burton v. Palmer, 2 Bulstr. TVestlake i. Adams, 5 C. B. N. s. 248; 192. 27 L. J. C. P. 271. 656 ■ CHAP. II.] MASTER AND SERVANT. * 456 allowed, (k) or for temporary absence and disobedience of orders, unattended by substantial injury to the master. But for all gross misconduct, and repeated or lengthened absence producing substantial injury to the master, they will be held responsible ; and if an infant apprentice wlio has executed indentures of apprenticeship avoids the contract on his coming of age, and refuses to continue in the service of his master, they are bound to make good whatever damage is sustained by the latter by reason of such repudiation of the contract. (Z) The sickness of the apprentice, or his incapacity to serve and to learn by reason of ill-health or an accident, does not discharge the master from his covenant to provide for him and to maintain him, inasmuch as the latter takes him for better and for worse, and must minister to his necessities in sickness as well as in health, (m) If the master has covenanted to teach three trades, and ceases to carry on one of them, he is guilty of a breach of contract, and the apprentice may, if he pleases, refuse to continue to serve. (71) Profits acquired by a servant or apprentice in the course of or in connection with his service belong to the master. Where the apprentice of a waterman had been impressed and put on board a Queen's ship, where he earned two tickets, it was held that the tickets belonged to the master. (0) Where the contract is silent as to the place where the trade is to be carried on, it has been held that the apprentice is bound to follow his master wherever his trade is set up. (p) Misconduct of the Apprentice — Dissolution of the Contract. — The same amount of misconduct which, in the case of a contract of hiring and service, w6uld authorize the master to dissolve the contract and discharge the servant, will not release him from lia- bility upon his covenant in an indenture of apprentice- ship, (q) * unless the contract in express terms gives the [*456] master power to dismiss the apprentice, (r) But if the (k) Wright V. Gihon, 3 C. & P. 583. (p) Koyce v. Charlton, 8 Q. B. D.l. (0 Cuming v. Hill, 3 B. & Aid. 59. {q) "Winston v. Lynn, 2 D. & R. 475; (m) R. D. Hales Owen, IStr. 99; Reg. 1 B. & C. 460; Wise v. Wilson, 1 C. & V. Smith, 8 C. & P. 153. K. 669; Phillips v. Clift, 4 H. & N. 168; (n) Ellen v. Topp, 6 Exch. 424; 20 28 L. J. Ex. 153. L. J. Ex. 241. (r) Westwick v. Theodor, L. R. 10 (0) Barber i). Dennis, 6 Mod. 69; Q. B. 224. Anon. 12 Mod. 415. VOL. I. 42 ' 657 * 456 CONTRACTS FOR SERVICES. [BOOK II. apprentice is guilty of such an amount of misconduct as ren- ders it impracticable for the master to maintain, employ, and teach him, according to the terms of the indentures, the master cannot be sued for neglecting to perforna his covenants in that behalf, inasmuch as the capability and willingness of the appren- tice to be instructed, maintained, and provided for by the master are naturally conditions precedent to the liability of the latter upon such covenants, (s) If tlie apprentice deserts the master's service and enlists in the army, or contracts another relation which disables him from lawfully returning to his master, the latter is not bound to receive him back and instruct him if he returns, (t) " By the custom of London it is a sufficient cause for a master to turn away his apprentice if he frequents gaming houses," although gaming may not be expressly prohibited by the indentures, (u) If the fulfilment of the contract has not been prevented by tlie wrongful act of the master, the latter is not bound to refund any portion of the premium he has re- ceived, (ar) The indentures of apprenticeship of an infant ap- prentice ma}^ be avoided by the infant, so far as regards his own personal liability on the contract, on his coming of age ; and the master must trust for the continuance of the service thereunder to the covenants of those who engage for the infant, unless the binding is under the authority of an act of parliament, (y) The contract may also be dissolved by cancelling the indentures, or by giving tliera up with the consent of all parties animo canccl- landi ; likewise by the death of the master or of the appren- tice, (2) or by the bankruptcy of the master, {n) If the master dies during the term, his representatives are not bound to return any part of the premium, as there is only a partial failure of con- sideration ; {b) and if the apprentice becomes permanently ill, tlie covenant that he shall serve during the term is discharged, (c) (s) Mercer v. Whall, 5 Q. B. 447- (;/) Ex parte Davis, 5 T. R. 715; E.r 466; 14 L. J. Q. B. 267; Eayment or parte Gill, 7 East, 376. Eaymond v. Minton, L. R. 1 Ex. 244; (z) Baxter v. Burfield, 2 Sir. 1266; 3.5 L. .1. Ex. 153; Brown v. Banks, 3 32 Geo. III. c. 57. Giff. 190. (a) 32 & 33 Vict. c. 71, sect. 33. (t) Hughes V. Humphreys, 9 D. & R. {h) Whincup v. Hughes, L. R, 6 C. 721; 6 B. & C. 680. P. 78; 40 L. J. C. P. 104. (u) Woodroffe v. Farnham, 2 Vern. (c) Boast v. Firth, L. E. 4 C. P. 1; 290. 38 L. J. C. P. 1. {£) Cuff V. Brown, 5 Pr. 297. CHAP. II.J MASTER AND SERVANT. * 457 Discharge by Court of Summary Jurisdiction. — The court has the same powers in case of a dispute between a master and apprentice as in a case between employer and workman, and as if the instrument of apprenticeship were a contract between em- ployer and workman, and may make an order directing the * apprentice to perform his duties, and if he neglects [ *457 j imprison him or rescind the instrument of apprentice- ship, and order the whole or part of any premium to be repaid, (d) Damages for refusing to employ, and for Wrongful Dismissal. — If a master or employer renounces the contract he has made with a workman or servant, and deprives him of tlie means of earning the stipulated remuneration, or refuses to take him into his employ, the jury, in assessing the damages, are justified in looking to all that has happened, or is likely to happen, to iu- crease or mitigate the loss of the plaintiff down to the time of trial, (c) If an action is brought by a domestic servant lor a dis- missal without the customary month's notice, a month's wages are recoverable as the agreed damages (ante, pp. * 436, * 439- *451). If the contract is not defeasible bj' giving a month's notice, but is for a year's service, and the defendant is improp- erly discharged before the end of the year, he may recover for the work actually done by him up to the time of his dismissal, and for the damage he has sustained by being prevented from continuing his services and earning the stipulated hire. (/) The action may be brought as soon as the dismissal takes place ; and the measure of damages is an indemnity to the plaintiff for the loss he sustains by the breach. If he lias found other equally eligible employment, the damages would be small ; but if not, they might far exceed the salary agreed to be paid, (g) Damages against Apjprentices. — Where an action was brought upon a covenant in an apprenticeship deed to recover damages for the loss of the services of the apprentice, it was held that damages were recoverable only up to the time of action brought, {d) 38 & 39 Vict. c. 90, sect. 6, re- J. Q. B. 455; Lake v. Campbell, 4 Law pealing 20 Geo. II. c. 19, sect. 4; Finley T. R. N. s. 582. V. Jowle, 12 East, 248; Se Gray, 2 D. (/) Ante, p. *451; Cutter i>. Powell, & L. 539. 2 Smith's L. C. 20. («) Hochster v. De La Tour, 22 L. (17) Emmens v. Elderton, 4 H. L. C. 645. 659 *-158 COKTBACTS FOE SEKVICES. [BOOK II. as the contract continued in force, and the apprentice might still be compelled to serve, (h) Title to Clothes by Hiring and Service. — Where the plaintiff had been hired as a servant by the defendant at thirty guineas a year and a suit of clothes, and had, on entering the service, been provided with the clothes, it was held that they did not become his property, and that he could not sue his master for detaining them until he had served a year, {i) [*458] * SECTION III. PEINCIBAL AND AGENT. Of Agencies and Commissions.^ — Whenever one man under- takes the management of the business of another without hire or reward, and enters upon his task, the contract between the par- ties is, as we have before seen, a contract of mandate, or a gratu- itous commission {ante, p. * 376). When the person employed is to be paid for his services, the contract is a contract for the letting and hiring of work and labor, care and attention, and belongs to the class locatio operis facicndi (ante, p. * 383). If the services of the party are hired for a term, the contract is a con- tract of hiring and service (ante, p. * 434). In either case the party employing is the principal, and the person employed the agent. If a commission-agent is engaged to sell goods for the principal, he paying him a certain sum per quarter, it does ' Upon the general principles of the law of agency, consult Story, Agency (9th ed.), c. 2, 3, 6; Wliartou, Agency, c. 2, 3; 1 Pars. Contr. (6th ed.) c. 3; U. S. Dig. tit. Principal a)id Agent, sects. 1-346 ; article by S. Maxwell on Liability of a principal for usurious loans made by an agent ; and on same subject, Payne V. Kewcomb, 100 111. 611; article, 20 Alb. L. J. 464; 8 South. L. Rev. N. s. 107; article on the Liability of principal and agent upon bills and notes, 14 Alb. L. J. 409; 15 Alb. L. J. 117; article of Doctrine of imputed notice, &c. 6 Am. L. Reg. N. s. 1; article by F. 1j. Wells on Implied ratification of agent's acts, 13 West. Jur. 3; article by S. D. Thompson on Respondeat superior, 5 South. L. Rev. N. s. 238. (/(,) Lewis V. Peachey, 1 H. & C. (i) Crocker v. Molyneux, 3 C. & P. 518; 31 L. J. Ex. 496. 470. 660 CHAP. II.] PKINCIPAL AND AGENT. * 459 not necessarily follow tliat there is a contract of hiring and service between the parties, (a) In all cases where a person is either actually or constructively an agent for other persons, all profits and advantages made by him in the business beyond his ordinary compensation are to be for the benefit of his employer, (b) Thus interest made by an agent, by the use of his principal's money, belongs to the prin- cipal, (c) and not only interest, but every other sort of profit or advantage, clandestinely derived by an agent from dealing or speculating with his principal's effects, is the property of the latter, and must be accounted for. So that if an agent who has purchased goods according to order, sells them again to advan- tage with the view of appropriating the gain to himself, although he should have answered the loss if any, yet his employer is entitled to the profits, (d) Thus where the captain of a ship, in letting it to Government for six months, had stipulated with the Government of&cer by whom the ship was taken up, that a sum of money should be paid to him for his own benefit, in addition to the freight, it was held that the money belonged to the ship- owner, (e) So where the master of a ship in a foreign port claimed to retain for his own benefit the premium upon a bill drawn upon England on account of the ship on the ground that there had been a usage for masters of ships to appropriate such premiums to their own use, it was held that the money belonged *to the owner, and not to the captain. (/) [*459] Where an army agent and contractor, who had been employed by the plaintiff to provide a reasonable outfit for her son, debited the plaintiff with the full amount of the invoice prices charged by the tradesman supplying the outfit, though discount had been allowed him in each instance, it was held that the plaintiff was entitled to the discount, {g) Where the defend- ant represented to the plaintiff that he could procure him some shares in a company at £3 a share, and transferred certain shares (a) Butterfield v. Marler, 3 C. & K. (e) Thompson v. Havelock, 1 Campb. 163. 527. (6) Story on Agency, sect. 211. (/) Diplock v. Blackburn, 3 Campb. (c) Rogers v. Bochin, 2 Esp. 702. 43. (d) Paley on Principal and Agents, p. (g) Tumbull f . Garden, 38 L. J. Ch. 51. 331. 661 *459 CONTRACTS FOR SERVICES. [BOOK II. to the plaintiff, and was paid £3 a share, and the plaintiff subse- quently discovered that the defendant was himself the owner of the shares, and had lately purchased them for X2 a share, the defendant was ordered to pay back the difference in the price. Qi) Where the plaintiff authorized the defendant, as his broker, to negotiate for the purchase of a ship, and the defendant, without the knowledge of the plaintiff, received £225 from the vendor out of the purchase-money, it was held that the plaintiff was entitled to recover the £225 from the defendant, {i) But where a ship-owner employed merchants to insure for him, and they charged him full premiums, but were allowed discount by the underwriters beyond brokerage, it was held that, as the allow- ance was usual, and the shipowner appeared to have accepted tlie terms, he could not afterward recover the discount, [k) Revocation of Authority.^ — If no term of service has been expressly or impliedly agreed upon, the employer may at any time dispense with the future services of the agent, and revoke the authority delegated to him, so far as it relates to things to be done and remaining unexecuted. If a party is engaged as a " permanent attorney," the word " permanent " does not confer any durable or special appointment as attorney, and the princi- pal is not precluded from withdrawing the retainer ; but if he is retained at a yearly salary, he is in general entitled to damages if he is dismissed before the end of the year, (l) Things actually done by the agent in the execution of his commission will, of course, be binding upon the principal ; but the agent cannot, after his authority has been countermanded, enter, as between himself and the principal, into any fresh transaction. If the jjrincipal furnishes his agent with a sum of money, to be expended in the purchase of property, the principal may at any time, before the purchase is made and the money ex- ' As to revocation of agent's authority, see Story, Agency (9th ed.), c.l8; Whar- ton, Agency, u. 2, sects. 93-112; 1 Pars. Cont. (6th eJ.) c. 3, sect. 8; U. S. Dig. tit. Principal and Agent, sects. 440-485; U. S. Ann. Dig. tit. Principal and Agent, I. Principal's death, see article, 19 Am. L. Reg. x. s. 401; and 39 Am. Dec. 81, note. (h) Kimber v. Barber, L. R. 8 Ch. 56. and see G. W. Ins. Co. v. CunlifTe, L. E. (i) Morrison v. Thompson, L. R. 9 9 Ch. 525. Q. B. 480. (?) Emmens v. Elderton, 13 C. B. {k} Baring!). Stnnton, 3 Ch. D. 502; 495; 4 H. L. 0. C24. 662 CHAP. II.J PRINCIPAL AND AGENT. * 460 pended, revoke the authority, and require the money to be repaid to him. (m) If goods are intrusted to a com- mission * agent for sale, the principal may, at any time [ *460 ] before a sale has been made, require the goods to be re- turned to him ; (w) and the agent has no right to sell contrary to the express directions or instructions of his employer, for the pur- pose of repaying himself his advances, (o) But the right to stop money intrusted to an agent to be paid to a third party, or to stop a sale, or revoke the orders or authority given, is always subject to this limitation, that the agent is merely an agent, and is not himself interested in or responsible for the payment of the money according to the directions he received when it was placed in his hands, {p) and has not done anything to render himself personally liable to the third party in consequence of the orders of the principal, {q) But mere advances made by a factor do not give him any rights in derogation of the right of the principal to give directions as to the time and manner of sale, unless such rights are conferred upon the factor by some express agreement, or by a known usage of trade, (r) If an agent agrees to act for a firm in partnership for a term of years, the contract is dissolved by the death of one of the partners during the term, (s) ■When the Agent's Authority is irrevocable. — An authority coupled with an interest cannot be revoked. Where, there- fore, a debtor handed to his creditor a power of attorney, author- izing him to sell certain lands of the debtor and pay the debt out of the proceeds of the sale, it was held that this power of attorney could not be revoked, {t) Accounts.^ — It is the duty of an agent to keep regular accounts 1 On the duty of agents in keeping and rendering acconnts, see Story, Agency (9tli ed.), sects. 203, 332; Wliarton, Agency, sect. 299; 1 Pars. Contr. 88; 2 Bouv. (m) Fletcher r. Marshall, 15 M. &.W. (q) M'Ewen v. Wood.s, 11 Q. B. 13; 763. 17 L. J. Q. B. 207. (n) Raleigh v. Atkinson, 6 M. & W. (r) De Comas v. Prost, 2 Moo. P. C. 670. N. s. 158. (o) Smart v. Sandars, 3 C. B. 380; (s) Tasker v. Shejiherd, 6 H. & N. 16 L. J. C. P. 39; Chinnock v. Sains- 575; 30 L. J. Ex. 207. bury, 30 L. J. Ch. 40S. (t) Gaussen u. Morton, 10 B. & C. \p) Yates V. Hoppe, 9 C. B. 541. 731 ; Clerk v. Laurie, 2 H. & N. 200. C63 * 461 CONTRACTS FOR SERVICES. [BOOK II. and vouchers ; (u) and if he refuses to account, after demand is made, he will be responsible in damages. («) If goods have been intrusted to an agent to sell, and he renders no account of them, it will be presumed j9ri??ia /acie, that they have been sold, and the money received, (y) If an agent mixes up his princi- pal's property with his own, he must show clearly what part of the property belongs to him ; and if he fails in doing so, it will be treated as the property of the principal, (z) An agent who stands in a fiduciary relation to his principal cannot set up the statute of limitation in bar of a suit for an account by his prin- cipal, (a) Liabilities of Brokers, Factors, and Commission- [*461] Agents, to their * Principals.^ — All persons are brokers who contrive, make, and conclude bargains and contracts between merchants and tradesmen, for which they have a " fee or reward." (6) Every broker and commission-agent who is employed to make purchases or to sell on behalf of his princi- pal, impliedly promises to execute the commission intrusted to him in a careful, skilful, and diligent manner, and to obey the orders and directions he receives. If he is ordered to purchase an article of first-rate quality, and he buys an inferior com- modity, he is guilty of a breach of contract, and is responsible to the principal in damages, (c) He is bound to exercise his judgment and discretion to the best advantage for the benefit of In.st. 40; U. S. Dig. tit. Principal and Agent, sects. 6C9, 750, 1630. "When bailiff or other agent is liable to action of account, and the nature of such action, 3 Bouv. Inst. 587-600. Duty of agents generally, and of particular classes of agents to account, 1 Wait, Act. & D. 2.'32. Of broker, 3 Wait, Act. & D. 280; Dos Passes, Stockb. 686. Of factor, ib. 293. When broker must furnish itemized account. Dos Passos, Stockb. 122. ' See U. S. Dig. tit. Principal and Agent, II. Eights, duties, and liabilities of agents ; IV. 1, Brokers; 3, Commission merchants; 4, Factors ; Whartun, Agency, c. 4, Duties of agent to principal ; c. 15, Brokers; c. 16, Factors ; Story, Agency (9th ed.), sects. 28, Brokers; 33, Factors; also 109-113, 131, 141-143, 398-411, 448; c. 8, Liability of agents to their principals; u. 9, Defences of agents against principals ; 1 Pars. Contr. c. 4, Factors and brokers; Edw. Fact. & B. sects. 16, 31, 108, 119. (it) Itomilly, M. E., Stainton v. The (o) Burdick v. Garrick, L. E. 5 Ch. Carron Co., 24 Beav. 353. 233. (x) Topham v. Braddick, 1 Taunt. (ft) Milford v. Hughes, 16 M. & W. 575. 177. iy) Hunter v. Welsh, 1 Stark. 224. (c) Mainwaring v. Brandon, 2 Moore, (z) Story's Eq. Jur. sect. 468. 125. 664 CHAP. II.] PRINCIPAL AND AGENT. * 462 his principal, to render just and true accounts, and to keep the property of his principal unmixed with his own property, or the property of other parties, (d) He has in general an implied authority to sell at such time and for such prices as he may, in the exercise of his discretion, think best for his employer ; he may sell on credit, if it is customary so to do, or if he acts under a del credere commission ; and he must account for the produce of all sales effected by him when called upon so to do. (e) He cannot himself become the purchaser of the prop- erty intrusted to him to sell, unless he deals for it with the principal, openly and fairly, " at arm's length," and after a full disclosure of everything he knows concerning it ; (/) nor can he purchase his own goods for his principal, (ff) Where an agent employed to sell land sold it to a company in which he was interested as a shareholder and director, it was held that he was entitled to no commission from his employer in respect of the sale, (h) If money has been paid by a principal to his brokers to en- able them to carry out a contract which he had authorized, and which, at the time of such payment, he believed them to have entered into on his account, whereas, in truth, the authorized contract had never been made, the principal may recover the money from the agents, (i) A mere forwarding agent is not bound to see whether the quality of goods which he is employed to ship or to forward corresponds with a contract which he has been instrumental in negotiating, (k) * Liability of Principals to Brokers, Factors, and [ * 462 ] Agents.^ — The principal is not bound by the unau- 1 See Story, Agency (9th ed.), c. 13, Eights of agents in regard to their prin- cipals; U. S. Dig. tit. Principal and Agent, III. Rights, duties, and liabilities of principals; Wharton, agency, c. 5, Duties of principal to agent; 1 Pars. Contr. c. 3, sect. 13; Edw. Fact. & B. sects. 7-15; Lewis, Stocks, 107. (d) Clarke i;. Tipping, 9 Beav. 284; (g) Bentley i). Craven, 18 Beav. 76. Thorn. V. Bigland, 8 Exch. 725; Gray i;. (h) Salomans v. Pender, 3 H. & C. Haig, 20 Beav. 238. 639; 34 L. J. Ex. 95. (e) Crosskey v. Mills, 1 C. M. & R. (0 Bostock v. Jardine, 3 H. & C. 298; Boorman v. Brown, 3 Q. B. 515, 700; 34 L. J. Ex. 142. 527; Boden v. French, 10 C. B. 886. (k) Zuilchenbart v. Alexander, 1 B. (/) Murphy y.O'Shea, 2 Jones &Lat. & S. 234; 29 L. J. Q. B. 236; 30 ib. 422. Trevelyan v. Charter, 9 Beav. 140. Q. B. 254 665 »462 CONTRACTS FOR SERVICES. [BOOK II. thorized acts of his agent, but he is bound where the authority- is pursued, or so far as it is distinctly pursued. But the question may often arise whether, in fact, the agent has exceeded what may be deemed the substance of his authority. Thus, if a man should autliorize an agent to buy one hundred bales of cotton for him, and he should buy fifty for him at one time of one person, and fifty at another of a different person, or if he should buy fifty only, being unable to purchase more at any price, or at the price limited, the question would arise whether the authority was well executed. In general it might be answered that it was, because, in such a case, it would ordinarily be implied that the purchase might be made at different times of different persons, or that it might be made of a part only, if the wliole could not be bought at all, or not within the limits prescribed, (l) Thus, where a principal gave an order to his agent to purchase one hundred bales of cotton, and he purchased ninety-four, that being all he could purchase, exercising all diligence, it was held that he had fulfilled his contract, (m) And where tlie principal ordered five hundred tons of sugars, and the agent could only get, from several different persons, four hundred tons, it was held that the principal was bound to accept the four hundred tons, (ft) The question is one of the interpretation of the contract limiting the authority of the agent. The agent is bound to use due dili- gence to fulfil his duty or authority given to him. (o) Del Credere Commissions.^ — When the agent, in consider- ation* of an additional commission, guarantees to his principal the payment of all debts that become due through his agency to the principal, he is said to act under a dd cralcrc commission, a phrase derived from the Italian word credere, to trust, (p) Every person accepting and acting under a commission of this sort for the sale of goods makes himself responsible for the sol- vency of his vendees, and becomes absolutely liable to the prin- 1 On dd credere commi.ssions, .see Story, Agency (9th ed.), sects. 33, 112, 215, 234, 328; 1 Pars. Contr. 91, 95, 568 n.; Wharton, Agency, sects. 706, 784-786; Edw. Fact. & B., sect. 70; U. S. Dig. tit. Principal and Agent, sect. 1506. (I) Story on Agency, sect. 170. (n) Ireland v. Livingston, L. R. 5 H. (m) Johnson y. Kershaw, L. R. 2 Ex. L. 395. 82. , (o) Ireland v. Livingston, mpra. (p) Grove v. Dubois, 1 T. E. 12. 666 CHAP. II.] PRINCIPAL AND AGENT. * 463 cipal for the payment of the price of the goods he sells, {q) Factors and commission-agents for sale, who receive and sell goods for foreign principals, or for parties residing at a distance, usually conduct their agency under a del credere commission, guaranteeing the solvency of the buyers or undertaking for the due payment of the price realized on sales effected by them. Their contract, however, is not a contract or promise, as we have seen {ante, p. * 168), to answer for the debt or * default of another within the meaning of the statute [*463] of frauds, but an original independent contract, and only another form of selling goods, (r) Where a factor having a del credere commission has made advances to his principal, and has sold goods on account of the latter, he cannot, whether he has received the proceeds of the sale or not, recover from the prin- cipal so much of the advances as is covered by the price of the goods unless there is an express agreement between them, mak- ing the advances payable immediately, and postponing the time of payment of the price of the goods, (s) A person to whom goods are sent to be sold, and who is at liberty to sell them at any price he pleases, he paying a fixed price for them to the owner, is not an agent, {t) Liabilities of Insurance-brokers to their Principals.^ — If an insurance-broker neglects to attend to the orders of his principal, or is guilty of misconduct and negligence in effecting an assur- ance, he will be responsible for all the damage that has been sustained by his employer, and may be clothed with all the responsibilities which would have devolved upon the under- writer, had the insurance been regularly effected. He may be compelled to pay to his principal the full sum ordered to be insured, or a total or average loss, as the case may be ; but when 1 See XT. S. Dig. tit. Principal and Agent, sect. 1313; Bliss, L. Ins. c. 9; 2 Pars. Mar. Ins. c. 8; 2 Phillips, Ins. c. 23; Wood, F. Ins. c. 12; article on Insurance- brokers, 13 West. Jur. 489; Wharton, Agency, sects. 202, 704, 705, 710; Story, Agency (9th ed.), particularly sects. 58, 103, 109, 187, 190, 191, 203, 432, note ; May, Ins. o. 5; AngeU, F. & L. Ins. u. 23. {q) Mackenzie v. Scott, 6 Bro. P. C. (s) Graham v. Ackroyd, 10 Hare, 291. 202. (r) Couturier D. Hastie, 8 Exch. 40; (t) White, ex parte, L. R. 6 Ch. Wickham v. Wickham, 2 Kay & J. 397. 478. 667 * 464 CONTRACTS FOK SEEVICES. [BOOK II. he is proceeded against for losses by perils which he ought to have insured against, he is, of course, entitled to every benefit and objection which the underwriter liimself could have taken advantage of if the assurance liad been duly effected, such as fraud, de\iation, non-compliance with warranties, or the like. (») He is bound, moreover, to exercise a reasonable and proper amount of care, skill, and judgment in the execution of his duty, (x) If a merchant abroad has effects in the hands of his correspondent here, he has a right to expect that the latter will obey an order to insure, because he is entitled to call his money out of the other's hands when and in what manner he pleases ; and although he has no effects, yet if the course of dealing between them be such that the one has been used to send orders for insurance, and the other to comply with them, the former has a right to expect that his orders for insurance will still be obeyed, unless he receives notice to the contrary. If the mer- chant abroad sends bills of lading to his correspondent here, he may engraft on them an order to insure, as the implied condition on which the bills of lading shall be accepted, which the other must obey if he accept them, for it is one entire trans- [*464] action, (i/) If the "* broker finds that he is unable to effect an insurance upon the terms offered by the prin- cipal, it is his duty to give the latter notice of the fact. If he makes the insurance on terms different from those prescribed, he will be responsible to the principal, (a) But if insufficient orders are sent, and the agent or broker does all that is usual to get the insurance effected, that is sufficient, (a) The insur- ance-broker is agent for both parties : first, for the assured, in effecting the policy, and in everything that is to be done in con- sequence of it; then he is agent for the underwriter as to the premium, but for nothing else. If he neglects to pay the pre- mium to the underwriter, the latter may maintain an action for its recovery, unless circumstances have occurred entitling the (m) Park V. Hammond, 2 Marsh. (y) Smith v. Lascelles, 2 T. R. 189; 191; Malloiigh v. Barber, 4 Campb. 160; Corlett v. Gorrlon, 3 Campb. 472. Turpin v. Bilton, 6 Sc. N". R. 447. (z) Callender v. Oelrichs, 6 Sc. 761. (x) Chaiiman v. Walton, 10 Bing. (a) Smith v. Cologan, 2 T. R. R7; 3 M. & S.-. 389; Cahill v. Dawson, 188, n. 26 L. J. C. P. 253. 668 CHAP. II,] PRINCIPAL AND AGENT. * 465 insured to a return of the premium, in which case it is the duty of the broker, if he has notice tliereof, to retain the money and . return it to the insurer, (b) If he has acted as the agent of the underwriter in paying the loss upon the policy, the payment by the broker is a payment by the underwriter himself, (c) It is the usage amongst merchants, insurance-brokers, and under- writers in the city of London, to set off the general balance of accounts between the broker and the underwriter, at the time of the loss, against the loss, and for the broker then to debit himself to that amount in his account with the assured, and the underwriter is then considered to be discharged of his debt to the assured ; and when the assured is cognizant of this course of dealing, and assents to it, the passing of the accounts between the broker, the underwriter, and the assured, operates as a pay- ment to the latter, and as an extinguishment of the underwriter's debt, (d) The broker now keeps two accounts with underwriters, called the credit and the cash accounts, into which the premiums received from the principals of the broker go, and the balance on which is due from the broker to the underwriter, and in no way from the individual assured, whose particular premium has goue into that account, (e) The authority given to a broker when he is to effect a policy of insurance does not extend to warrant him in cancelling it. (/) Sharebrokers and Stockbrokers.' — If a sharebroker, directed to buy shares, buys what is ordinarily bought and sold in the stock market as shares, he has fulfilled his commission, and can- not be made responsible for the fraud or misconduct of parties who may have issued the shares without authority. There is no warranty * or undertaking, either on the [*465] part of a broker employed to buy shares or scrip, or on 1 See Dos Passos, Stockb. c. 3, 7, 10, 11; Biddle, Stockb. 75, 138, 388; Lewis Stocks, c. 3, 6, 7, 10, 11; Edw. Fact. & B. sects. 7-9, 109; Wharton, Agency, sect. 702 ; Story, Agency (9th ed.), notes to sects. 9, 186, 335, 371 ; U. S. Dig. tit. Principal and Agent, sects. 1350-1363. (b) Sh.ee V. Clarkson, 12 East, 507. (e) As to broker's accounts, see Beck- (c) Edgar v. Burastead, 1 Campb. with v. Bullen, 8 El. & BL 683; 27 L. 410; Jamieson v. Swainstone, 2 ib. 547, J. Q. B. 162; and Xenos v. Wiokham, n. 14 C. B. N. s. 460; 33 L. J. C. P. 19. - {d) Stewart v. Aberdein, 4 M. & W. (/) Xenos v. Wickham, L. R. 2 H. 211. L. 296; 36 L.J. C. P. 316. 669 *465 CONTEACTS FOR SERVICES. [BOOK II. the part of the principal who employs him, that the article, which merely passes through the broker's or the principal's hands, is anything more than what it purports on the face of it to be, and what it is generally understood to be in the market, {g) Every principal who employs a stockbroker or sharebroker to transact business for him in the stock or share market is bound by the rules of the Stock Exchange and the established mode of transacting business, whether he knew of the usage or not, (A) unless the rules are unreasonable. (M) If a sharebroker sells pursuant to his authority, and the principal neglects to deliver the shares, and the broker is consequently obliged to buy other shares in the market, he is entitled to recover from his employer all the damages, costs, and expenses, besides the customary re- muneration for his trouble and loss of time, (i) And generally, whenever the sharebroker has been compelled by the custom of the Stock Exchange to make good the default of the princi- pal, he has a remedy over against the latter. Therefore, if he pays calls on shares which he has purchased for his principal, he may recover the amount from the latter. (Ic) Solicitors^ are, as we have already seen, bound, in common with all professional men, to act faithfully and diligently, and exercise a reasonable degree of care and skill in the conduct and manage- ment of the business intrusted to them to execute («?ife, p. *407). Gifts and purchases by a solicitor from his client are, as we shall see {post, p. * 1179), invalid, unless the confidential relationship has been determined as regards the particular transaction, and ' Upon the subject of attorneys at law in the United States, consult Weeks, Attonieys, particularly c. 10, Authority and powers of attorneys by virtue of their retainer ; c. 11, Duties of attorneys towards clients ; u. 12, Liability of attorneys to their clients ; c. 13, Liability of clients to attorneys ; Story, Agency (9th ed), sects. 24, 212, 217 6, 331, 383; Wharton, Agency, c. 12 ; 1 Pars. Contr. 113; U. S. Dig. tit. AUorney and Client. (rj) Lamert t'. Heath, 15 M. & W. not being binding upon outside credit- 486; 1.5 L. J. Ex. 298; Mitchell .. ors, see fe^^artc Saflery, 3 Ap.Cas. 213; Newhall, 15 M. & W. 308; 15 L. J. Ex. Mk parte Grant, 13 Ch. D. 607. 292; Westropp v. Solomon, 8 C. B. 373. (7i/i) Pearson r. Scott, 9 Ch. D. 198, (h) Sutton V. Tatham, 10 Ad. & E. and Robinson v. Mollett, ante, p. *204. 27; Bowlby t). Bell, 3 C. B. 2S4; Pollock (i) Bayliffe v. Butterworth, 1 Exch. V. Stables, 12 Q. B. 774 ; Coles v. Bris- 425. towe, L. R. 4 Ch. 3; Nickalls v. Merry, (/.) Bayley v. Wilkins, 7 C. B. 899; L. R. 7 H. L. 530 ; see, however, ante, Taylor v. Stray, 2 C. B. N. S. 175; 26 p. *204. As to Stock Exchange Rules L. J. C. P. 287. 670 CHAP. II.] PRINCIPAL AND AGENT. * 466 some disinterested advice has been taken and acted upon by the client ;(Z) but the validity of the purchase cannot be impeached by a stranger, (^n) If a solicitor discontinues proceedings in an action which he has commenced by direction of his client, he is bound to show a reasonable and satisfactory ground for such discontinuance; and he must in general give due notice to his client of his intention to discontinue ; and if he improperly throws up a cause, he has no right to be paid fro rata for his work and labor. (71) If a cause * which he is re- [*466] tained to conduct fails through his negligence, he can- not recover from his client money expended by him subsequently to such negligence. "If he is not entitled to charge for his labor, he cannot charge for his money." (0) A solicitor is re- sponsible to the client for all sums received by him in the con- duct of the business intrusted to him, and must render a true and faithful account thereof when called upon so to do. Where, on a sale of real estate, the solicitor of the vendor receives the deposit as agent of the vendor, he has not, in the absence of any stipulation to that effect, any duty, like tliat of an auctioneer, to the vendee, but must pay it over to his principal, the vendor, on demand. (^) He is responsible also, as we have already seen, for the safe investment of all moneys intrusted to, and accepted by, him for investment [ante, p. * 379). But the town agent of a country solicitor is not responsible to the clients of the latter for money received whilst conducting their causes or legal proceed- ings. The privity of contract is solely between the town agent and his principal and employer, the country solicitor; he knows nothing of the clients of the latter, and is bound to account only to his principal. (See ipost, p. * 476.) But the court will, as before mentioned, sometimes interfere summarily for the protection of the client. The solicitor must, in general, one month before action against his client, deliver his bill of costs, signed by him, to his client ; [q) and when his bill has been paid, he is bound [l] Holman v. Loynes, 18 Jur. 839; (0) Lewis D. Samuel, 8 Q. B. 685. Simpson V. Lamb, 7 EU. & Bl. 84; Gibbs (p) Edgell u Day, L. R. 1 C. P. 80; V. Daniel, 4 Giff. 1. 35 L. J. C. P. 7. (m) Knight v. Bowyer, 26 L. J. Ch. (?) Phippsu. Daubney, 16 Q. B. 514; (m) Nieholls v. "Wilson, 11 M. & W. 106. Smith v. Pococke, 22 L. J. Ch. 545. 671 *467 CONTEACTS FOR SEEVICES. [BOOK II. to deliver up, if called upon, all papers and documents in his hands belonging to his client, iu good order and properly arranged, (r) Sheriff's Officers, expressly employed by a solicitor to execute process, may maintain an action against the latter for the recov- ery of such fees as are usually allowed on the taxation of costs by the course and practice of the courts, and are not bound to resort to the clients of the solicitor for remuneration, (s) Duties of Estate and House- Agents.^ — A house-agent em- ployed to procure a tenant for a house is bound to use due care and caution in the letting of the house, and to make all proper and necessary inquiries touching the respectability and solvency of the tenant. If, therefore, he lets the house to a notoriously insolvent person, or to one whom he knows to be insolvent, he will be responsible in damages to his employer, (t) Receipt of Money and G-oods by Agents on Account of their Principals. — It is a settled rule that an agent shall not, [*467] after * accounting with his principal and receiving money iu his capacity of agent, afterward say that he did not do so, and did not receive it for the benefit of his prin- cipal, but for some other person, (u) unless there has been a mistake and a void payment ab initio, so that the money never was iu trutli received for the principal. But if the agent effects a contract of sale at a high price in consequence of a fraudulent misrepresentation made by him, and receives such price, but is afterward compelled to refund the money to the purchaser, the principal cannot maintain an action for money had and received against the agent, to recover the price, inasmuch as the sale is avoided by the fraud of the agent, and the money received under 1 As to real-estate agents, see Fitch, Real- Estate Agency, particularly c. 2, Em- ployment of the real-estate agent; c. 3, His authority; u. 6, His liability; Lynch, Eeal-Estate Brokers, iiartioularly, c. 2, Authority of broker; c. 4, His duty; c. 5, His liability ; u. 6, Liability of principal ; U. S. Dig. tit. Principal and Agent, sect. 1328. (r) North- West Ey. Co. v. Sharp, 18 30 L. J. Q. B. 362. As to commission, Jur. 96i. see post, p. * i7'2. (s) Foster v. Blakelock, 8 D. & E. (st) Dixon v. Hamond, 2 B. & Aid. 48. 313; Hawes u. Watson, 2 B. & C. 540; (<) Heys V. Tindall, 1 B. & S. 296; Edgell v. Day, 35 L. J. C. P. 7; L. E. 1 C. P. 80. 672 CHAP. II.] PKINCIPAL AND AGENT. * 468 it becomes the property of the purchaser, and is not money had and received for the use of the principal, (x) And although an agent has received goods from his principal to hold on account of the latter, or although he has received goods from a third party, and has agreed to hold them for his principal, he may, under certain circumstances, set up a jus tertii. Thus, if an auctioneer has received goods for public sale from a person who is not the owner of them, and has no right to sell them, and the real owner intervenes and forbids the sale, or claims the money realized by the sale, the auctioneer may set up the title of such real owner against the claims of the fictitious owner from whom he received the goods, (y) But although in many cases a bailee may set up against a claim by his bailor the^'^s tertii, yet, if the bailee has accepted the bailment with full knowledge of an ad- verse claim, he cannot afterward set up the existence of such a claim as against the bailor, (z) So where a wharfinger received notice that goods deposited at his wharf were marked with a fraudulent imitation of a trade-mgirk, and that the owner of the trade-mark was about to apply to the Court of Chancery for an injunction to prevent the sale of the goods, and, after the injunc- tion had been granted, but before the wharfinger had notice that it had been granted, he refused to deliver tlie goods to the owner, it was held that he was justified in such refusal, (a) Where a managing owner of a ship, or " ship's husband," em- ployed certain agents for general purposes, and amongst others to receive and pay moneys on account of the ship, and kept a general account with them, and also a separate account as man- aging owner or ship's husband of the ship's disbursements and earnings, and, in order to obtain the freight earned by the vessel *from the East India Company, it was [*468] necessary that a receipt signed by the managing owner, and by one or more of the other owners also, should be given for the money due, and, upon a receipt of this description, the agents received £2000, which was placed by them to the credit of the (x) Pavke, B., Murray v. Mann, 17 (z) Ex parte Davies, 19 Ch. D. 86. L. J. Ex. 256; 2 Exoh. 541. (re) Hunt v. Maniere, 33 Beav. 157; (y) Biddle v. Bond, 6 B. & S. 225; 34 L. J. Ch. 142. 34 L. J. Q. B. 13>; Hardman v.Wilcock, 9 Bing. 382. VOL. I. 43 673 • 468 CONTKACTS FOR SERVICES. [BOOK 11. managing owner in his account with them, it was held that the money was received by the agents as agents of the managing owner, and that the transaction was in effect the same as if the other joint-owners and the managing ov^rner liad received the money, and it had been then handed over to the managing owner, who had then placed it in the hands of the agents, as his bankers, on his own account, and that the joint-owners could not treat the agents as their debtors. (6) But where tlie plain- tiffs were owners of a ship, and one of them was ship's husband, and the latter instructed the defendant at Quebec to charter the vessel from thence to England, and the defendant effected a charter-party, making the freight payable to himself at Quebec, and received the freight, and claimed to retain it in liquidation of a debt due to him from such ship's husband, it was held that the contract between the ship's husband and the ship agent with respect to the management and chartering of the vessel was a contract which belonged to all the shipowners, and that the defendant was bound to pay over to them the money re- ceived under that contract, (r) Receipt of Money by Sub-Agents.^ — Every agent is responsible for money received by a sub-agent employed by him for the purpose of receiving the money, whether the principal had, or had not, reason to suppose that there was any necessity for the employment of a sub-agent. Thus, if the customer of certain bankers hands them a bill, in order that they may receive the money due upon it, and they send the bill to their correspond- ents at a distant place, and the bill is presented by them, and the amount paid, the paj'ment to the sub-agent employed by the bankers for the purpose of receiving the money is a payment to the bankers to whom the bill was delivered by the customer, and they are responsible to him for the money, although it never reaches their hands and is never passed by them to the credit of 1 As to sub-agents, see Story, Agency (9th ed.), sects. 386-390, 201, 217 a;, 490; Wharton, Agency, sects. 276-278, 308, 3i8, 571, 827; 1 Pars. Contr. 75, 82 note, 89; U. S. Dig. tit. Principal and Agent, sect. 584 ; article by C. C. Tiedeman, on the Liability of banks in making collections, for the acts of correspondents and notaries, 12 Cent. L. J. 149 ; Allen v. Merchants' Bank, 22 Wend, 215, 34 Am. Dec. 289, and note by A. C. Freeman, ib. 307. (I) Sims V. Brittain, 4 B. &Ad. 375. (c) Walshe v. Provan, 8 Exch. 843. 674 CHAP. II.J PRINCIPAL AND AGENT. * 469 the customer, {d) The sub-agent so employed to receive money is accountable only to the agent, his employer, and cannot be sued for the money by the principal, (e) But, if he is not strictly a sub-agent, as, for example, if he has received direct instructions from the principal, or is in * any respect [*469] the agent of the latter, he will be accountable accord- ingly. Thus, where a creditor employs a country solicitor to recover a debt, and the country solicitor employs a London solicitor to set the legal machinery in motion, and the debt is paid to the London solicitor, the latter is accountable to the client for the money, and cannot retain it in satisfaction and discharge of a debt due to him from his immediate employer, the country solicitor. (/) Payment by one Agent to another Agent. — Where an agent who receives money for his principal pays it over to another agent of that principal, he is bound to pay it in such a way as shall enable the agent to perform his duty to his principal, i. e. he must pay in cash, and not merely settle it in account between that agent and himself; or if he does so settle it, he takes it on himself to show an authority from his principal, and that there was an account between the principal and that agent, on which the principal was indebted to the latter, (g) Purchases by the Agent with the Money of the PrincipEiI. — The property of a principal intrusted to his factor or agent belongs to the principal, notwithstanding any change which the property may have undergone in point of form, and even though the agent may have mixed the proceeds with his own money. Where, therefore, a draft for money was intrusted to a broker to buy exchequer bills for his principal, and the broker received the money and purchased American securities with it, and absconded, and was taken on his way to America, and surrendered the secu- rities to his principal, it was held that the principal was entitled to the securities so purchased as against the assignees of the . (cJ) Mackersay v. Ramsays, 9 CI. & Hately, Ves. Jun. 292; Story, Agency, Fin. 845. sect. 203. (e) Ireland v. Thompson, 4 C. B. 149; (/) Hanley v. Cassan, 11 Jur. 1088; 17 L. J. G. P. 248; Stephens o. Bad- Sx parte Edwards, 8 Q. B. D. 262. cock, 3 B. & Ad. 354; Cartwiight v. (g) Alderson, B., ib. 675 * 470 CONTRACTS FOE SERVICES. [BOOK II. broker, who had become bankrupt, (h) But the rule does not apply where there is no fiduciary relation between the par- ties, {i) Frauds by Agents on their Principals. — Agents are in a sense trustees, and they owe to their principals a similar duty to that which trustees owe to their cestui que trust. Therefore, when two agents concur in a fraud, both are liable in equity, although one of them only has the benefit of the fraud. Where two confiden- tial agents of a partnership conspired together to obtain for tliemselves the shares of the partners at an undervalue by keep- ing the accounts of the firm fraiidulently so as to conceal from the partners the true value of their shares, it was held that their misconduct might be treated as a breach of trust. (7i-) An agent cannot, without the knowledge of his prin- [*470] cipal, be * allowed to make any profit out of the matter of his agency beyond his proper remuneration as agent ; and this rule applies with peculiar stringency to the directors of joint-stock companies, who are the agent of the company for effecting the sales or purchases made by the company. (/) Payment of Commission.^ — If the amount (_if commission is named by the principal in his letter of instruction to the agent, and the agent declares that it is quite inadequate, but neverthe- less acts upon the instructions, he will be bound by the specified commission. If he accepts the retainer, he must take it in its entirety, and cannot adopt part and repudiate part, and sue for a reasonable remuneration for his services, (m) A commission- agent employed to negotiate a sale upon the terms that he is to be paid a commission on the amount of purchase-money, or on the happening of a certain event, will not be entitled to any commission until the purchase-money has been received or the ' As to the compensation of agents, ,see Story, Agoney (9th ed. ), sects. 326- 334 & 348 ; Wharton, Agency, sects. 321-339, %lb, 724 ; U. S. Dig. tit. Principal and Afjent, sect. 500. (h) Taylor v. Plumer, 3 M. & S. 562; {k) Walsham v. Stainton, 33 L. J. see /» re Hallitt's Estate, 13 Ch. D. 696; Ch. 68. Harris v. Truman, 7 Q. B. D. 340; 9 Q. (/) Hay's case, L. E. 10 Ch. 593. B. D. 264, C. A. {m) Moore v. Maxwell, 2 C. & K. (i) New Zealand and Australian 554. Land Co. v. Watson, 7 Q. B. D. 374. 676 CHAP. II.] PEINCIPAL AND AGENTi * 471 event has happened, unless there has been fraudulent delay or wilful neglect on the part of the employer. (») In the ordinary course of commercial dealings a compensation is impliedly under- stood to be due to every person who undertakes the duties and services of an agent, the amount being generally governed by the usage of trade ; but parties who sell as mortgagees or trustees are not entitled to commission, in the absence of any express contract or agreement to pay them for their services {ante, p. * 387). Where a broker took an assignment of several cargoes in trust to sell on their arrival, and out of the proceeds to repay the amount of his advances, and some of the cargoes were received and sold by him under the power in the deed, whilst the rest were sold under an order made in a suit instituted by him to enforce his security, it was held that in the latter sales he was entitled to his ordinary commission, but not in the former, as he sold, as regarded them, as a trustee, (o) The fact that a party has agreed to sell goods on commission may be proved by oral evidence, though the terms as to the payment of such com- mission have been reduced into writing, {p) An authority to sell upon certain terms and for certain commission is revoked by the death of the principal before the authority has been acted upon and executed ; and if the agent sells after the death of the principal, he will not be entitled to the agreed commission, unless the personal representative has renewed the authority with knowledge of the contract, {q) If the commission *is [*47l] to be paid on the " net proceeds," it is payable only on the actual sum which reaches the pocket of the princijial after deducting all charges and expenses, (r) Extra Work by Agents. — For all work done by the agent in discharge of his business as agent he is paid by his commission, and can make no extra charge ; but for work done by order of the principal, beyond his duty as an agent, he is entitled to make an extra charge, provided the work was done under circum- stances fairlj'- giving rise to an inference that he was to receive an extra remuneration, (s) ()i) Bull V. Price, 5 M. & P. 2; 7 (?) Campanari v. Woodburn, 15 C. Biiig. 237 ; Alder v. Boyle, 4 C. B. 635. B. 400; 24 L. J. C. P. 13. (o) Arnold v. Garner, 2 Ph. 231. (r) Caine v. Horsfall, 1 Exch. 519. {p) Whitfield V. Brand, 16 M. & W. (s) Marshall^. Par.sons, 9 C. & P. 658. 282. 677 *472 CONTKACTS FOR SERVICES. [BOOK II. Rights of Shipbrokers to Commission. — Shipbrokers are usually entitled, by the custom and usage of trade, to £5 per cent commission upon the freight payable upon charter-parties obtained and entered into by their aid and exertions ; and if the amount of freight is uncertain, they may, if they think fit, sue for a reasonable remuneration upon a quantum meruit. The right to the commission does not depend upon the fact of the ship's earning freight ; and the claim is not liable to be cut down by the loss of the vessel, or her failure to get a cargo, (t) When a shipbroker has introduced the captain of a ship and a mer- chant to each other, and they by his means enter into some negotiation for a voyage, the broker is in general by usage of trade, entitled to his commission if a charter-party is effected between them for that voyage, even though they may employ another broker to prepare the charter-party, or may write the charter-party themselves. And if a broker, authorized by both parties, and acting as the agent of each, communicates to the merchant what the shipowner charges, and also communicates to the shipowner what the merchant will give, and he names the ship and the parties, so as to identify the transaction, and a charter-party is ultimately effected for that voyage, this broker is entitled to his commission ; but if he does not mention the names, so as to identify the transaction, he does not get his commission to the exclusion of another broker who afterward introduces the parties personally to each other ; for if the ship and the parties are not named, the brokers might change the ship, and put in another, pending the negotiation, {u) Where a shipowner employed A, a shipbroker, to procure a charter for his sliip, and A employed B, another broker, who pro- cured the charter, evidence of a usage of trade was admitted to show that the second broker, who actually procured the [ * 472 ] charter, * was entitled to his commission from the ship- owner. (55) But to render the shipowner responsible upon an implied contract with the second broker, it must be shown that the shipowner was cognizant of the employment of the latter, and knew, at the time he accepted the charter, that (t) Hill V. Kitehing, 3 0. B. 306. But see Schmating v. Tomlinson, 6 (11) Burnett v. Bouch, 9 C. & P. 624. Taunt. 147; Boultou v. Jones, 2 H. & N. {x) Smith V. Boutclier, 1 C & K. 574. 564. 678 CHAP. II.] PRINCIPAL AND AGENT. * 472 it had been obtained through his instrumentality, (y) A usage of trade cannot be given in evidence to impose on the party who has entered into the contract another and wholly different obli- gation, and to show that, because he has agreed to consign the ship to the charterer's agents on the outward voyage, he is there- fore liable to pay the agent's commission on the homeward cargo, (z) Right to Commission of Policy-Brokers. — By the 30 Vict. c. 23, sect. 16, the principal is not to be liable to pay the broker's commission upon effecting a policy of sea insurance, or an)' premium paid by the broker, unless the policy is duly stamped ; and any sums so paid are to be deemed to have been paid without consideration, and are to remain the property of the principal. Right to Commission of Travellers for Orders. — When a com- missiou-agent, employed by a manufacturer to obtain orders, is to receive a commission " on all goods bought " by persons from whom he obtains orders, the commission is earned as soon as a valid bargain of purchase and sale has been made between the manufacturer and the purchaser introduced by such agent, whether the goods are at the time in existence or not in exist- ence, and whether the contract is or is not ultimately carried into effect, and whether it turns out to be a bad bargain, produc- tive of loss, or an advantageous transaction, (a) Commission of House-agents, Estate-agents, and Auctioneers.^ — If a man having a house or estate to sell or let, places it in the hands of several house-agents, with instructions to secure a purchaser or tenant, the successful agent is alone entitled to 1 Upon a troker's right to commissions, see Denickson v. Qiiimby, 43 N. J. L. 373 ; McArthur v. Slauson, 53 Wis. 41 ; "Watson v. Brooks, 15 Cent. L. J. 308 ; Pratt V. Hotchkiss, 10 111. App. 603 ; Levy v. Loeb, 85 N. Y. 365 ; Gonzales v. Broad, 57 Cal. 224; Dolan v. Scanlan, ib. 261; Veazie v. Parker, 72 Me. 443; Harper u Goodall, 62 How. Pr. 288; Potts v. Aeohternaclit, 93 Pa. St. 138. As to auctioneers, see Story, Agency (9tli ed.), sects. 27, 107, 108, 140 note, 209; Wharton, Agency, c. 13; 1 Pars. Contr. 495, 520; 2 ib. 615, 628; U. S. Dig. tit. Auction, sect. 101. (y) Smith v. Boutcher, 1 C. & K. (a) Lockwood v. Levick, 8 C. B. N. s. 576. 603; 29 L. J. C. P. 340. (z) Phillips V. Briard, 1 H. & N. 27; 25 L. J. Ex. 233. 679 *473 CONTRACTS FOR SERVICES. [BOOK II. commission, unless instructions have been given to the other house-agents to advertise the house, or render some particular or special services in the matter, entitling them by the custom of the trade to some remuueration. (h) But if the relation of buyer and seller is really brought about by the act of the agent, he is entitled to his commission, although the actual sale was not effected by him. (c) Where A promised to pay B a sum of money if he would procure him a tenant at a certain rent, it was held that B was entitled to the money as soon as a [ *473 ] party introduced by him had been accepted * by A, and a binding agreement for the tenancy had been entered into, ((f) In a great number of instances house-agents go to a great deal of trouble on the terms that if they get no purchaser they shall have no claim ; and if upon the contingencies wliich have happened nothing was to be paid, nothing can of course be recovered. (<•) Where an auctioneer was employed to sell ground-rents by auction, on the terms of receiving 1 per cent commission on the sale, and, after he had advertised the sale, but before the day of sale, the employer sold the rents by private contract, it was held that a notorious custom in the trade, for the auctioneer to receive his full commission in such a case, might be engrafted upon the contract. (/) But the usage must be so universal that every one in the trade must be taken to know it. (//) The Right of the Agent to be reimbursed upon the Revocation of his Authority depends upon the terms of the contract by which his services were retained, and the custom and usage of the trade in wliich he is engaged. Wlien an agent is employed to sell or to let, on the terms that he is to be paid a certain per- centage on tlie price or the rent, the general understanding is that he takes his chance of a large remuneration in case he finds a purchaser or a tenant, but gets nothing if he fails in so doing ; but if trouble and expense have been properly incurred by the agent in endeavoring to carry into effect the instructions of the (h) Prickett v. Bmlger, 1 C. B. N. s. (e) Green v. Mules, 30 L. J. C. P. 290; 26 L. J. C. P. 33. 343. (c) Green v. Bartlett, 14 C. B. N. s. (/) Rainy v. "Vernon, 9 C. & P. 685. 559. (d) Horford v. Wilson, 1 Taunt. 15. (?) Wood v. Wood, 1 ib. 60. 6S0 CHAP. II.] PRINCIPAL AND AGENT. * 474 principal, and the latter revokes the authority, and prevents the agent from reaping the expected reward, the principal is hound to remunerate him for his trouble and expenses in the matter, (h) Where an estate-agent, employed to sell at a given price, suc- ceeds in finding a purchaser, but the principal then declines to sell, the agent is entitled to sue for a reasonable remuneration for his services ; and the amount of his commission on the price would seem to be the sum to which he is fairly entitled. But if the authority is revoked before it is executed and a purchaser has been found, it does not follow that he is entitled to sue upon an implied contract for remuneration for his work and labor in endeavoring to find a purchaser or a tenant, (i) If it is the prac- tice of house-agents to charge a fee for entering property to be let or sold in their register-book, and the employer has notice of this, or it is proved to be a known custom of the trade, the em- ployer will be bound to pay this fee, although the authority may be revoked, or the agent may have failed to render any beneficial * service. This registration fee is all that the [ * 474 ] house-agent is entitled to charge for ordinary services in the absence of any special instructions for advertisements, (k) Where a public company employed a broker to dispose of their shares, on the terms that he should be paid £100 down, and £400 in addition upon the allotment of the whole of the shares of the company, and the broker disposed of a considerable number of shares when the company was wound up, it was held that the broker was prevented from earning the £400 by the act of the company, and was therefore entitled to sue them for damages. (Z) Lien of Factors and Brokers.^ — Pactors and brokers to whom goods are consigned to be sold have a lien for the general bal- ance due to them from their employers or principals in the 1 As to the lien of agents, especially factors, see Story, Agency (9th ed), c. 14; U. S. Dig. tit. Principal and Agent, sects. 546, 1537-1576 ; 1 Pars. Contr. 93 : 2 ib. 743; 3 ib. 258; Wharton, Agency, sects. 766-777, and c. 18. {h) Simpson v. Lamb, 17 C. B. 616. (k) Simpson v. Lamb, 17 C. B. (i) Frickett v. Badger, 1 C. B. N. s. 616. 296; 26 L. J. C. P. 33; Campanari v. (l) Inchbald v. "Western Neilgherry, Woodburn, 15 C. B. 407; 24 L.J. C. P. &c. Co. 17 C. B. N. s. 733; 34 L. J. 13. C. P. 15. 681 *475 CONTRACTS FOE SERVICES. [BOOK II. ordinary course of their business as factors, and for their accept- ances on behalf of sucli employers, upon the goods whilst they are in their possession, and on the moneys realized by the sale of them, (ill) This right exists universally by the custom of the trade. It is part of the law merchant, and as such is judicially taken notice of by the courts, no proof being ever required as a matter of fact that such general lien exists. Tlie lien does not extend to a collateral debt not growing out of the relationship of principal and factor, such as a debt due for rent,.('/i,) nor to goods which have not actually reached the hands of the factor, (o) and come into his possession with the consent and direction of the owner; consequently, if goods have been left at the factor's place of business by mistake or inadvertence, (|j) or have been taken possession of by him without the authority of the owner, he cannot set up a lien upon them for his balance, (q) And if the party from whom he receives the goods is only an agent he cannot retain them as against the true owner for a debt that was due to him from the agent at the time the goods were put into his hands, and which was not contracted on the credit of the deposit of the goods ; but it is otherwise if he has made ad- vances on the credit of the deposit, not knowing the depositor to be an agent, (r) Tlie factor can only claim a lien for his gen- eral balance upon goods which come to his hands as factor. A factor, therefore, who effects a policy of insurance, not as factor, but as an insurance-broker, is not entitled to a general lien on a policy in his hands for a balance due to him in his cliaracter of factor, (s) [ *475 ] * Lien of Packers. — A packer is entitled to a general lien on the goods of his customer which are in his hands, (t) although they do not now so frequently make advances to their customers as they used to do. (u) (m) Kriiger v. Wilcox, AmW. 2.'.2; {q) Taylor v. Robmson, 2 Moore, Hudson v. Gvanser, 5 B. & AH. 31; 730. Hammond v. Barclay, 2 East, 227; In (r) Pultney v. Keymer, 3 Esp. 181. re Pavy's Patent IVdted Co., 1 Cli. D. (s) Dixon v. Stansfield, 10 C. B. 931. 398. (n) Houghton v. Mathews, 3 B. & P. (t) Green v. Farmer, 4 Bur. 2214; Ex ■485. parte Deeze, 1 Atk. 228. (o) Kinloch v. Craig, 3 T. R. 123. (u) In re Witt, 2 Oh. D. 489. (2>) Lucas V. Dorrien, 7 Taimt. 278. 682 CHAP. II.] PKINCIPAL AND AGENT. * 475 Lien of Insurance-Brokers.' — Insurance-brokers have also, by the general usage and custom of trade, a lien for the general balance due to them from their employers upon all policies effected by them for such employers, and left in their hands, and upon all moneys received by them upon such policies from the underwriters, unless the party for whom they effected the policy was himself only an agent in the matter, in which case the extent of the lien will depend upon the disclosure or concealment of the agency, and the degree of credit they may have given to the agent, under the impression that he was the party really inter- ested in tlie policy. The lien does not extend to a collateral debt not incurred in respect of brokerage business. If a policy-broker is employed by an agent, and there is no disclosure of the agency, and nothing to lead the broker to think that any third party is interested in the policy, and the assurance is accordingly effected in the name of the agent as owner, and a loss occurs, and the policy is allowed, after the loss, to remain in the broker's hands, and the latter then permits the agent to get into his debt, not knowing him to be an agent, the broker will have a lien as against the principal upon the policy, and upon the money he receives thereon from the underwriters, to the extent of the debt due to him from the agent as well as for his commission and charges for effecting the policy, (k) But if there is the slightest indication of the agency to the broker, such as a declaration by a British subject in time of war that the property is neutral, {y) or a state- ment that the assurance is to be effected " for a correspondent in the country," {£) or that the property to be insured belongs to a merchant abroad, who has consigned it to the agent with full power of disposition over it, and with authority to indorse the bill of lading, (a) the broker will have a lien only for his com- mission and charges for the insurance, and not for the balance due to him from the agent. 1 As to the lien of an insurance-broker, see IX. S. Dig. tit. Principal and Agent, sect. 1313; Story, Agency (9tlied.), sect. 379; 2 Phillips, Ins. 543-556; Wharton, Agency, sect. 707. (x) Mann «. Forrester, 4 Campb. 61 ; (z) Snook v. Davidson, 2 Campb. Westwood V. Bell, ib. 355; Olive v. 218. Smith, 5 Taunt. 56. (a) Lanyon v. Blanchard, ib. 597. (.!/) Maauss -o. Henderson, 1 East, 337. 683 *476 CONTKACTS FOR SERVICES. [BOOK II. Lien of Solicitors. ^ — Solicitors also have a lien upon all money recovered by them in the actions and suits in which they are employed, and upon all tlie deeds and papers and other articles of their clients which come to their hands in their pro- fessional capacity, for the purposes of business, not only [*476] for the costs of the * particular cause or matter with which such deeds or papers are connected, but for the costs due to them generally from their clients, (b) But the lien does not attach while the suit is still pending ; and the parties may compromise the dispute and thus deprive the solicitor of his lien, if the compromise is bona fide, (c) By the 23 & 24 Vict. c. 127, sect. 28, the court may charge the client's property recov- ered or preserved {d) through the instrumentality (e) of the solici- tor, with the payment of his costs. (/) If the solicitor discharges himself during the suit, he loses his lien, so far at any rate as relates to papers necessary for the successful prosecution of the suit ; but it is otherwise if he is discharged by his client. (^) A solicitor has no lien upon the will of a client for the costs in- curred in the preparation of it, and cannot therefore refuse to produce it after his client's death until his costs have been paid. And where deeds are delivered for a specific purpose, the right of lien is extinguished as soon as the particular purpose has been accomplished ; and it may be superseded altogether by the attor- ney's taking from the client security for his costs, (/i) A solici- tor held the title-deeds of a mortgagor. He was also acting for the mortgagee, and continued to hold the deeds. The mortgagor ' As to the lion of an attorney at law, see U. S. Dig. tit. Attorney and Client, sects. 850-949; Weeks, Attorneys at law, sects. 3riS-384; Story, Agency (9th eJ.), sect. 383; Wharton, Agency, sects. 615-630; 1 Pars. Contr. 116; 2 ib. 55; 3 ib. 269. (J) Stevenson u. Blakelock, 1 M. & (r) See Twynam v. Porter, L. E. 11 S. 535; Lambert v. Buckma.ster, 2 ];. & Eq. 181; Heiniich «. Sntton, L. P,. 6Ch. C. 616; Bluiiden v. Deserl, 2 Dru. & W. 865: Re National Ins. Ass., L. R. 7 Oh. 405; Friswell v. King, 15 Sim. 191; 221. Rollins V. Goldingham, L. R. 13 Eq. (/) Berrie v. Howitt, L. R. 9 Eq. 1; ^*0- Re Keane, L. R. 12 Eq. 115; Baile i: (e) Morrison, Ex parte, L. R. 4 Q. B. Baile, L. R. 13 Eq. 497; Jones v. Frost, 153; s. c. Sullivan v. Pearson, 38 L. J. L. R. 7 Ch. 773. Q. B. 65; Mercer ». Graves, L. R. 7 Q. (g) Faithful, Li re, L. R. 6 Eq. B. 499; 41 L. J. Q. B. 212. 325. (d) Baile t). Baile, Mj/ra ; The Hein- (h) Genges v. Genges, 18 Ves. 294; rich, L. E. 3 Ad. & E. 505. Balch v. Lymes, Turn. & R. 92 684 CHAP. II.] PEINCIPAL AND AGENT. * 477 filed a petition for liquidation, and the solicitor acting for the trustee sold the equity of redemption and received the purchase- money. It was held that he had a lien upon it for costs due to him from the mortgagor. (J) A solicitor to a former trustee in a bankruptcy has a lien upon documents, the fruits of his own labor or expense, as against a new trustee, (/c) A solicitor cannot set up the lien of his London agent on the papers of his client, against the claims of that client, the client having paid his solici- tor's bill. (I) The town agent of a country solicitor has a lien only as against the client upon the money recovered, and upon the papers in his hands in the particular cause in which he is engaged, for the amount due to him by the solicitor in that par- ticular cause. He cannot set up a claim of lien as against the client for the general balance due to him from the country solici- tor who employs him, and cannot retain the money or papers of the client *to satisfy his general debt, (m) [*477] And his lien is limited to the debt actually due from the client to the country solicitor, so that if the country client pays the country solicitor, the lien is discharged, for the country solicitor can give the town agent no lien which he does not him- self possess, (n) But the London solicitor has a general lien against the country solicitor upon any money recovered in an action, for all costs for agency business, and disbursements due from the country solicitor, whether in the particular action or in any other proceedings ; but as between the London agent and the client the lien extends only to the costs of the particular action, (o) A solicitor cannot set up a general lien for the balance due to him in respect of services not rendered by him as a solicitor ; nor can he detain deeds and papers which do not come to him in his professional character. He has no lien, for example, where he acts or holds papers as town clerk, ( ^5) or steward of a (i) In re Messenger, 3 Ch. T>. 317. 87; 30 L. J. Ex. 403; BeatfieM v. Bar- (k) Ex parte Ealden, 4 Ch. D. 129. low, 38 L. J. Ch. 311; Ex 2Mrte Ed- (Q In. re Andrew, 30 L. J. Ex. 403. wards, 8 Q. B. D. 262; C. A.; see ante, (m) White v. R. Ex. Ass. Co., 7 p. *708. Moore, 249; Moody v. Spencer, 2 D. & (0) Lawrence v. Fletcher, 1 Ch. D. E. 6; Anon., 2 Dick. 802. 858. (n) Waller ■«. Holmes, IJ. &H. 139; (p) Champemown v. Scott, 6 Mad. SOL. J. Ch. 24; He Andrew, 7 H. & N. 93. 685 *478 CONTRACTS FOE SERVICES. [BOOK II. manor ; (q) he cannot set up any lien which is inconsistent with the nature of his employment, or the terms or conditions, or express or implied trust upon which he received the pa- pers, (r) His right, moreover, is dependent upon the rights of liis clients ; and he cannot acquire more extensive powers over the papers in his hands than the client himself possessed at the time he deposited them with him. (.s) If a solicitor transacts business for a firm in partnership collectively, and also man- ages the private business of the members of the firm individ- ually, he has no lien upon the private securities, deeds, and writings of one partner in respect of the business done for the firm, (t) A solicitor acting for mortgagee as well as mortgagor, thereby loses his lien on the deeds for costs due to him from the mort- gagor, unless such lien is expressly reserved, even although the mortgagee may have known that the solicitor had such a lien, (v.) Where the plaintiffs in a suit mortgaged their interest in the estate to the defendants with the sanction of the solicitor, and nothing was said about costs, it was held the solicitor's charge, under the 23 & 24 Vict. c. 127, s. 28 (svpra), ought [ * 478 ] not to be * postponed to the mortgage, as the defendants must have known of the rights of the solicitor, (a) Lien of Shipmasters. — An agent cannot in general acquire a lien upon the property of his principal for work done by others whom he has employed and paid. But a shipmaster has a lien on the freight, not only for his wages, but for any expenditure which he may make in the ordinary discharge of his duties as master, and which is necessary for the performance of the voy- age ; (?/) and where he makes a special contract, in itself ultra vires, in order to fulfil which he incurs special expenses, if the (q) Rox V. Sankey, 5 Ad. &. E. 428; Molesworth v. Eobbins, 2 Jones & Lat. Newington Local Board v. Eldridge, 12 358. Ch. D. 349. (t) Steadman v. Hockley, 15 M. & ()•) Lawson ti. Dickenson, 8 Mod. 307; AV. 553; Turner v. Deane, 3 Exch. 836; see lie Faithful, L. R. 6 Eq. 324; Sim- see Re Moss, L. E. 2 Eq. 345. monds v. Great East. Ry. Co., L. R. 3 («) In re Snell, 6 Ch. D. 105. Ch. 797. {x) Faithful o. Ewen, 7 Ch. D. (s) HolHs V. Clarige, i Taunt. 807 Esdaile v. Oxenham, 3 B. & C. 229 Lightfoot V. Keane, 1 M. & W. 745 686 495. (2/) The Feronia, L. R. 2 Adm. 65; 37 L. J. Adm. 60. CHAP. II.] PRINCIPAL AND AGENT. * 479 owner adopts the benefit of that contract, he must also bear its burthens. Where therefore, the master of an ordinary seeking ship entered into a charter-party, under seal, to carry troops from the Mauritius to England, and stipulated, on his own re- sponsibility, in the charter-party, that he would make certain alterations in the ship, in order to enable him to carry the troops, and at the Cape of Good Hope entered into another char- ter-party, not under seal, to a similar effect, and made the spe- cified alterations, and paid money and drew bills to meet the expenses necessary to the making of these alterations, and the voyage was performed, it was held that, in equity, the master was first entitled out of the freight earned under these charter- parties, to be repaid the sums advanced, and to be indemnified against the bills, and that the owner (or his mortgagee) was only entitled to the net freight after deducting these charges, (z) At common law the master has a possessory lien on the cargo, not only for freight, but also for general average, (a) The captain of a ship or his agent has a lien upon the cargo which he has saved, for the expenses of doing so, although such expenditure was not with the owner's consent nor for the purpose of en- abling the owner to earn freight, but for the purpose of saving the cargo. (6) Lien of Ship's Husband. — The right of a ship's husband to be repaid out of the freight for advances made on account of the ship is a right of lien or retainer, and not in the nature of a charge on the freight ; and, therefore, if he is removed from his office before he is in a position to receive the freight, an assignee of his interest cannot maintain a claim to it as against the owners, (c) Lien of Shipwrights. — A shipwright has a lien on a ship in his dock where he is to be paid in ready money as soon as the * repairs are finished, and no credit is [ *479 ] given, (d) and so has a contractor who agrees to furnish (2) Bristow V. Whitmore, 9 H. L. C. (c) Benyon v. Godden, 3 Ex. D. 263, 391. C. A. (a) Clearyi). M' Andrew, 2 Moo. P.O. {d) Raitt u. Mitchell, 4 Campb. 146; N. s. 216. Franklin v. Hosier, 4 B. & Aid. 341. (5) Kingston v. Wendt, 1 Q. B. D. 367. 687 *479 CONTBACTS FOR SERVICES. [BOOK II. engines, &c., to a ship, and even if part of the price is paid, he retains his lien for the remainder, (e) Indemnification of Agents. — • The principal is bound to in- demnify his agent in respect of all payments which may be made by the latter in the due course of his employment. (/) If the agent has necessarily incurred liabilities and expenses in following out his instructions lona fide, he may sue the principal upon an implied promise of indemnity; {g) but he cannot resort to the principal for an indemnity against the conse- quences of his own default, wrongful act, or want of skill and caution in the execution of his commission, {h) although a gen- eral indemnity against all charges and expenses he may be pu.t to in executing his commission may have been given to him by his employer. {%) JSTor is he entitled to be indemnified in re- spect of loss caused not by reason of his having entered into contracts which he was authorized to enter into by his principal, but by reason of his own insolvency, (/fc) If the agent, in the execution of his commission, has been compelled to pay money on behalf of the principal, he is entitled to recover the amount from the latter, whether the principal has or has not been re- lieved from liability by the payment, {l) If A employs B as a broker to buy shares in a company, according to the rules of the Stock Exchange, for a certain account day, and B in accordance with such rules pays for and takes a transfer of the shares on that day, x4. is bound to repay E the amount so paid, although before such account-day the company is being wound up under the 25 and 26 Vict. c. 89, sect. 153, which enacts that every transfer of shares shall then be void, unless the court otherwise orders, (wi) By the Koman and Continental law, it is laid do^vn (e) Ex parte Willoughby, 16 Cli. D. {i) Ibbett v. De la Salle, 30 L. J. E.x. 604. a. (/) Risliourg V. Bruckner, 3 ( '. B. (/,•) Duncan v. Hill, L. R. 8 Ex. 242; N. s. 823; 27 L. J. C. P. 90; Taylor v. 42 L. J. Ex. 179. Stray, 2 C. B. N. s. 175; "Westropp v. (I) Britain u. Lloyd, 14 M. & W. 762; Solomon, 8 C. B. 369; Johnstone v. 0s- 15 L. J. Ex. 43; Spurrier v. Elderton, 5 borne, 11 Ad. & E. 549. Esp. 1; Pettiman v. Keble, 9 C. B. (g) Adamson v. Jarvis, 4 Bing. 71-; 701. 12 Moore, 241; Betts v. Gibbins, 2 Ad. (m) Chapman v. Shepherd, L. R. 2 & El. 67; 4 N. & M. 64; Rawlings v. C. P. 228; 36 L. J. C. P. 113; Bieder- Bell, 1 C. B. 960. man v. Stone, 36 L. J. C. P. 198; L. R. (k) ToplisD. Grane, 7 Sc. 641; Fare- 2 C. P. 504. brother v. Ansley, 1 Campb. 347. 688 CHAP. II.] PEINCIPAL AND AGENT. *480 that there results from all agencies, mandates, and commissions, an implied contract on the part of the principal or employer to indemnify the agent for all his disbursements and expenses, and for all the liabilities incurred by him in the execution of his commission, (n) * Breach of Warranty of Authority by Agents. — Where [ * 480 ] an agent pretended to be authorized by a specified firm to purchase a ship on their behalf, and it turned out that he had no authority, and the shipowner was obliged to look out for another purchaser of the vessel, and lost £250 on the resale, it was held that the £250 was the measure of damage in an action against the agent for a breach of an implied undertaking or promise that the authority which he professed to have did in point of fact exist, (o) Where an agent pretended to be author- ized to grant a lease, and it turned out that he had no such authority, it was held that the intended lessee was entitled to re- cover the value of the lease and all costs paid and incurred by him in endeavoring to enforce specific performance, down to the time when the agent disclosed the fact of his want of author- ity, but not the damages and costs arising out of the resale by the intended lessee of his lease, (p) So where the defendant, the joint owner of an estate, contracted, without authority from his co-owners, to sell it to the plaintiff, and on their failure to complete the sale the plaintiff sued them and failed, it was held that the plaintiff was entitled to recover from the defendant all costs up to the time when it appeared that the defendant had no such authority, as well as the expenses he had incurred in the investigation of the title, and the difference between the con- tract price and the market price of the estate, but not losses he had incurred on rssale of stock bought for the purpose of stock- ing the land, as that was not shown to have been in the con- templation of the parties at the time of the sale, (q) If a man (re) Dig. lib. 17, tit. 1. lex 12, sect. 9; Q. B. 215; Hugliea v. Grame, oMe, p. Poth. Mandat, No. 68-75; Domat, liv. *65; Pow v. Davis, ante, p. *65. 1, tit. 15, sect. 2. (.p) Spedding^. Nevell, L. E. 4C. P. (o) Simons i». Patchett, 17 Ell. & Bl. 212; 38 L. J. C. P. 133; Godwin v. 568; 26 L.J. Q. B. 195; and see further, Francis, L. R. 5 C. P. 295; 39 L. J. as to damages recoverable for false repre- C. P. 121. sentation of authority by agents. Col- (?) Godwin i). Francis, L. E. 5 C. P. len V. Wright, 8 Ell. & BI. 659; 27 L. J. 295; 39 L. J. C. P. 121. vol,. I. 44 689 *481 CONTRACTS FOE SERVICES. [BOOK II. puts money into the hands of another to purchase goods, and he neglects to make the purchase, and is sued for a breach of his undertaking in that behalf, the proper measure of damages is the value of the goods to the employer if they had been duly purchased, not the value of the money, (r) Negligence of Bank-Managers. — It is no breach of duty on the part of the manager of a bank to discount bills for companies in which he is interested, provided the advances are made within the scope of his authority and in the ordinary course of business, and no allegation of mala fides can be sustained, nor is lie, it seems, under any obligation to disclose to the directors [ *481 J the fact * that he is a shareholder in companies keeping accounts with the bank, (s) So it is the duty of the shareholder who has sold shares to execute a transfer of them, although the company is winding up, and he will be liable to his broker who has been obliged by the rules of the Stock Exchange to buy other shares for the purpose of delivery to the purchaser accordingly, {t) Damages for Breach of "Warranty of Authority. — Costs of Previous Legal Proceedings. — A defendant is responsible in damages for the natural and ordinary consequences of the wrong done. Where, therefore, the defendant, who was employed as architect to superintend the building of a church, ordered stone for the church from the plaintiffs in A's name and on his ac- count, and the plaintiffs supplied tlie stone, and afterward sued A for the price, but failed in their action, and had to pay A's costs and the costs of their own attorney, because it was proved at the trial that the defendant had received no authority from A to order the stone in his name, and the plaintiffs then brought an action against the defendant to recover the damages they had sustained by reason of his false assumption of agency and pre- tence of authority for the order he gave, it was held that the plaintiffs were entitled to recover from the defendant not only the value of the stone ordered by him in A's name, but also the costs they had incurred and paid in the former action. (■?() So (r) Ehrensperger^. Anderson, 3 Exch. (/) Biederman v. Stone, L. E. 2 C. P. 158. 504. (.s) Bank of Upper Canada v. Brad- (w) Eandcll D, Trimen, 18 C. B. 786; shaw, L. R. 1 P. C. 479. 25 Law J. C. P. 307. 690 CHAP. 11.] CARKIERS. * 482 where a land-agent professed to have authority from a landowner to let land, and signed an agreement for a lease, and the land- owner repudiated the lease and denied the authority, and the intended tenant, relying on the representation of the agent, filed a biU in Chancery against the landowner for a specific perform- ance of the agreement, and notice of the suit was given to the agent, and the latter failed to withdraw his assertion of authority, he was held liable to pay the costs of the Chancery suit, (x) But no person relying on a pretended authority of this sort ought in prudence to take legal proceedings against the supposed princi- pal without giving notice to the pretended agent, and giving him an opportunity of withdrawing or verifying his assertion of authority, (y) ♦SECTION IV. [*482] CONTRACTS FOE CARRIAGE. Of Contracts for the Carriage of Merchandise.^ — Every person who accepts goods and chattels for conveyance to a particular destination for hire or reward, paid or agreed to be paid him for the carriage of them, impliedly lets out his labor and care in re- turn for the hire or reward agreed to be paid to him. The con- tract, therefore, belongs to the class locatio opekis. It was styled by the Roman jurists locatio operis mercium vehenda- 1 For some discussions of the law of common carriers, which emhrace all classes of carriers, not being limited either to ships, to railroads, or the like, see Angell, Carriers (5th ed.), 1877; Eedfleld, Carriers; Hutchinson, Carriers (1879); Lawson, Contracts of Carriers (1880) ; Thompson, Carriers of Passengers (1880) ; U. S. Dig. tit. Carriers ; also ih. tit. Bailment ; Ahh. Nat. Dig. tit. Carriers ; article on the Power of Congress to regulate inter-State commerce, by J. N. Pomeroy, 4 South. L. Rev. N. s. 357; Notes on the law of common carriers, by U. M. Rose, ib. 451; article on the Power of Usage, &c., to alter rules of law in the case of common can-iers, by J. D. Lawson, 6 ib. 845-849; article on Contracts to carry goods at owner's risk, 15 West. Jur. 433. (x) CoUen v. Wright, 7 Ell. & Bh (?/) Wightman, J. , in CoUen i;. Wright, 311; 8 ib. 647; 26 Law J. Q. B. 147; 26 Law J. Q. B. 161. 27 ib. 215; Spedding v. Nevell, L. R. 4 C. P. 212. 691 *482 CONTRACTS FOR SERVICES. [BOOK II. RUM, or the letting out of the work of caiTying merchandise. The owner who delivered the goods to the carrier to be carried was the letter of the work of carrying, and he was also at the same time the hirer of the labor and services of the carrier ; whilst the carrier, on the other hand, was both the hirer of the Avork of carrying and the letter of his own labor and services, care, and attention, to be employed in and about the conveyance and transport of the merchandise. Such being the nature of the contract between the parties, the carrier may make a breach by negligently or wilfully omitting to take care, and an action may be brought for the breach of contract ; or such negligent or wil- ful act may be treated as a " tort," regarding it as a breach of duty imposed by law upon the carrier. The cases upon the sub- ject are somewhat conflicting, (a) Of course the parties may, and in most cases practically do, enter into a specific contract of carriage, and their rights are then governed by tlie express terms of such contract, and the implied terms which the law will in- fer ; but apart from any special contract, there is in every case of carriage for reward a contract between the parties. Contracts of Affreightment — Charter-parties. ^ — When goods and merchandise are carried by sea from one place to another, they are usually shipped on board a vessel under a charter-party or a bill of lading. A charter-party is a contract whereby the shipowner or the shipmaster covenants or agrees for tlie use of the ship by the charterer for some specified period of time, or for 2 The law of affreiglitiment and charter-parties has been comprehensively dis- cussed within recent years by several American writers. 2 Pars. Contracts, 286- 306; 1 Pars. Shipp. & Adra. c. 7, 8; "Waples, Proc. in Eem. c. 60; Desty, Com. & Nav.; Desty, Shipp. & Adm. ; lirdf., Can-, c. 22; U. S. Dig. tit. Sh72)pm(/, III. 1, 2; Ann. Dis. 1879, &c., til. Ships and SJiiiJpivfi, IV. ; Abb. Nat. Dig. tit. Affreight- ment ; ib. tit. 7?777s of Lndinr/, ib. tit. Shipping, III. ; articles on Validity of State laws regulatini; bills of lading, 11 Cent. L. J. 181; on Bills of Lading, by A. Hamilton, 14 ib. 22; on Charter-parties, by 0. F. Bump, 16 Am. L. Rev. 633, ib. 709; ib. 781 ; on Limitation of time for carriers presenting claim for damage, 21 Alb. L. J. 305 ; see further, Pollard v. Vinton, 25 Alb. L. J. 407; Skilling v. BoUman, 73 Mo. 66; Richmond v. Union Steamboat Co., 87 N. Y. 240. (a) See Alton v. Midland Ry., 19 C. Berringer v. Gt. Eastern Ry., 48 L. J. B. N. s. 213; 34 L. .T. C. P. 292; Mar- C. P. 400; Fleming v. M. S. & L. Ey., shall V. Y. & ISr. Ry., 11 C. B. 655; 4 Q. B. D. 81; Foulkes r. Met. Ey., 4 Austin V. G. W. Ry., L. R. 2Q. B. 442; C. P. D. 267; 5 C. P. D. 157. 69 9 CHAP. II.J CAEKIEKS. *483 a particular voyage or adventure. The contract derives its name from the Latin term charta partita, there being anciently as many divided parts of the contract as there were parties to it, each party having his part of the contract as a security against fraud or mistake. * The customary stipulations [*4:83] on the part of the ship-owner or master are, that the ship shall be tight and staunch, and well equipped and manned, and furnished with all the necessaries for the voyage ; that she shall be ready by a day appointed to receive the cargo, and shall wait a certain number of days to take it on board, and, after lading, shall sail with the first fair wind for the destined port, and there (b) deliver the goods in proper order and condition to the order of the charterer ; and, further, that during the continuance of the voyage the ship shall be tight and staunch, and furnished with sufficient men and other necessaries, to the best of the owner's endeavors. The charterer, on the other hand, usually covenants to load the ship after she shall be ready to receive her cargo, and unload her within a certain number of days, and to pay freight at so much per ton according to the tonnage of the vessel, or according to the quantity of goods shipped on board, or according to the time of the ship's employment. Prima facie, the law of the place where a contract is made is that which the parties are to be presumed to have adopted as the footing upon which they dealt ; and such law ought to prevail in the absence of circumstances indicating a different intention. But a contract of affreightment made between a charterer and ship-owner of different nationalities in a place where they are both foreigners, may, under some circumstances, be construed by the law of the nation of the ship, (c) But where an English merchant insured goods with English underwriters in a French ship, it was held that the policy was not to be construed according to French law. (d) When the Contract operates as a Demise or Bailment of the Ship. — Although the ship-owner, by the charter-party, expressly (6) Sometimes the terms are to pro- (c) Lloyd v. Guibert, 6 B. & S. 100 ; ceed to a port, or so near thereto as the L. R. 1 Q. B. 115; 35 L. J. Q. B. 74. ship may safely get; see Capper v. Wal- (d) Greer v. Poole, 5 Q. B. U. 272. lace, 5 Q. B. D. 163; Dahl v. Nelson, 6 Ap. Gas. 38. 693 *484 CONTRACTS FOE SERVICES. [BOOK II. grants the vessel to be used by the charterer, the contract will, nevertheless, not amount in general to a demise or bailment of the ship to the charterer, so as to clothe him with the possession of the vessel, but simply to a contract for the use of the ship, together with the services of the master and crew, for the con- veyance of merchandise, i.e., to a contract for the letting and hiring of the work of carrying merchandise. If the end sought to be attained by a charter-party can be accomplished without a transfer of the possession of the vessel to the charterer, the courts will not give effect to the contract as a demise of the ship, although there may be express words of grant and de- mise, (e) If, however, the nature of the service and [*484] the due * attainment of the object sought to be accom- plished require the vessel to be absolutely under the control, and subject to the orders and directions, of the char- terer ; if she is to be employed in warfare, or in the fishing or coasting trade, or as a general ship for the conveyance of mer- chandise by the charterer for third parties, and is to be at the general disposal of the latter to sail upon any service that he may require, the courts will give effect to the contract as a de- mise of the ship. (/) In this case the contract is a contract for the letting and hiring of a chattel, and belongs to the class LOCATio REi (ante, p. * 343). The services of the master and crew pass as merely accessorial to the principal subject-matter of the contract ; they attorn, as it were, to the charterer, and become temporarily the servants of the latter, bound to obey his orders. Parties to Charter-parties. — If the parties have contracted by deed, the contract is with those who have executed the instru- ment, and covenanted therein in their own names, or by some known title or description. If the charter-party contains cove- nants both on the part of the owners and the master for the con- veyance of the cargo, and has been executed by both, either the owners or the master are responsible at the election of the cove- nantee. If it has been entered into and executed by the owners (c) Christie u. Lewis, 5 Moore, 253; (/) Trinity Houses. Clerk, 4 M. & 2 B. & B. 410; Saville v. Campion, 2 S. 295, 299; Hutton v. Bragg, 7 Taunt. B. & Aid. 510; Dean v. Hogg, 4 M. & 14. Sc. 195. 694 CHAP. II.] CAKRIEES. * 485 alone, they aloue are liable upon it; whilst if the master is tlie only executing party, the contract is with him alone, although the deed may be expressed to be made by him for and on behalf of his employers, the shipowners. If the master covenants in his own name, the contract is exclusively the contract of the master. He constitutes himself in such a case the carrier of the goods, and becomes personally responsible upon the express covenants contained in the charter-party, and also upon all such implied covenants and engagements as result from the contract and the nature of the employment, {g) When a charter-party of affreightment operates as a demise or bailment of the ship to the charterer, and the vessel is employed by the latter as a general ship for the conveyance of merchandise, the charterer becomes the carrier of the goods shipped on board, and the master is his servant and agent whilst procuring freight and contracting with third parties for the carriage of merchan- dise, and not the agent of the registered owners of the vessel, and the latter, consequently, cannot be made responsible for the loss of, or injury to, the goods shipped on board under such contracts, (/i) But when the charter-party operates merely as a contract between * the charterer and the [ *485 ] shipowner for the conveyance by the latter of goods and merchandise to be shipped on board by the charterer, the registered owners are then the carriers of the goods, and will be responsible to the charterer for the non-conveyance of them, according to their contract. And if the ship is put up as a general ship, without any intimation that she is under charter, and third parties ship goods and take bills of lading from the master, the owners will be responsible for the proper stowage and safe carriage of the goods so shipped. If in such a case the master refuses to sign bills of lading, except " as per charter- party," the shipper cannot be compelled to accept such bills, but may insist on having his goods returned, {i) Although the shipowners are not parties to a charter-party under seal, entered (g) Horsley v. Rush, cited 7 T. E. (i) Peek v. Lar.sen, L. E. 12 Eq. 378; 209. 4iO L. J. Ch. 763; see Jones v. Hough, 5 (h) James v. Jones, 3 Esp. 27; Major Ex. D. 115, C. A. V. White, 7 C. & P. 41; ante, p. *58; Newberry v. Colvin, 1 CI. & F. 283. 695 *486 CONTRACTS FOE SERVICES. [BOOK II. into by the master in his own name on their behalf, yet they are responsible for a breach of those duties and obligations which attach to them ia their character of carriers, independently of the charter-party. Thus where the plaintiff had shipped a cargo of oranges on board a vessel, of which the defendants were the owners, to be carried for hire from St. Michael's to London, but the defendants employed an unskilful master, through whose negligence the oranges were lost, it was held that the ship- owners were responsible for the loss, although the goods had been shipped on board by virtue of a charter-party of affreight- ment under seal executed by the master, by wliich the latter had covenanted to convey the cargo to its destination, (/c) When the contract of affreightment is not under seal, the action for the breach of such contract, and of the implied promises and en- gagements resulting from the acceptance of goods to be carried for hire, may be brought, either against the owners who appoint the master to the command of the vessel, and constitute him their agent for the employment of the ship, or against the master who has accepted the goods to be carried, whether the contract is expressed to be made, or whether the goods have been ac- cepted by him, in his own name onlj^, or for and on behalf of his principals and employers ; but when the plaintiff has elected to proceed against and has sued one, the other is discharged. (/) An agent is not ordinarily liable, as we have seen {ccnte, p. * 63), upon simple contracts entered into by him in a representative character on behalf of his principal ; but the master of a ship is considered to be something more than a mere agent, and is made reponsible accordingly. (??() [*486] * Performance of the Terms and Conditions of the Contract, — If by a charter-party of affreightment, a shipowner agrees that his ship shall sail to a " safe port " to take in a cargo, the naming of a " safe port " is a condition precedent to the shipowner's liability to send out the vessel, {n) The {k) Leslie v. Wilson, 6 Moore, 429; Boson v. Sandford, 1 Show. 104; Morse 3 B. & B. 171; Fletcher v. Braddiek, 5 i). Slue, 1 Ventr. 190, 238; Liver Alkali B. & P. 186; Fenton v. Dub. St. P. Co., Co. v. Johnson, L. R. 7 Ex. 267; 9 Ex. 8 Ad. & E. 843. 338; 41 L. J. Ex. 110; 43 L. J. Ex (I) Priestley v. Fernie, 23 H. & C. 216. , 977; 34 L. J. Ex. 172. {n) Raei). Hackett, 12 M. & W. 724 (m) Ellis V. Turner, 8 T. R. 533; 13 L. J. Ex. 216. 696 CHAP. II.J CAEEIEES. * 486 voyage begins from the time the vessel breaks grouDd to proceed to her place of loading; so that if the charter-party contains the usual exception of dangers and accidents of seas, rivers, and navi- gation during the voyage, and the vessel is delayed or hindered by foul weather in getting there, the delay is within the excep- tion, (o) If the shipowner agrees that the vessel shall leave England on or before a particular day to bring back a cargo from a foreign port, or that she shall arrive at a foreign port by a par- ticular day and shall be ready to receive cargo, the departure or arrival of the vessel at the time specified may constitute a condition precedent to the freighter's liability to provide the cargo and use the ship and pay freight, {p) Whether it will do so or not depends on the intention of the parties, to be gathered from the language they have used, and that intention may be inferred from the consequences of the breach ; so that if the delay entirely defeats the object of the freighter in taking up the vessel, the agreement for departure or anival by a certain day will be a condition precedent, {q) Where by charter-party the freighter covenanted to pay freight for a vessel at so much a ton per month until her final discharge, so much of such freight as might be earned at the time of the arrival of the ship at her first destined port abroad to be paid within ten days next after ar- rival there, and the remainder of the freight at specific periods, it was held that the arrival of the ship at her first destined port abroad was a condition precedent to the owner's right to recover any freight, (r) A shipowner by entering into a charter-party impliedly undertakes that the ship shall be reasonably fit for the carriage of a reasonable cargo of any of the kinds of goods specified in the charter-party ; and if the ship is not so fit and cannot be made so in such a time as not to frustrate the object of the voyage, the charterer may decline to put a cargo on board, and may main- tain an action against the shipowner, (s) (o) Barker v. M' Andrew, 18 C. B. 26 L. J. Ex. 1.53; Belin v. Bumess, 3 B. N. s. 759; 34 L. J. C. P. 191. & S. 759; 32 L. J. Q. B. 204. (p) Glaholra v. Hayes, 2 Sc. N. R. (?) McAndreww. Cliapple, L. E. 1 C. 471; Shadforth v. Higgin, 3 Campb. P. 643. 385; Lovatt v. Hamilton, 5 M. & W. (r) Graves v. Legg, 9 Exch. 717; 23 644; Oliver v. Fielden, 4 Exch. 135; L. J. Ex. 231. Croockewit v. Fletcher, 1 H. & N. 912; (.?) Stanton v. Eichardson, L. E. ' C. P. 421; 9 C. P. 390. 697 *487 CONTRACTS FOR SERVICES. [BOOK 11. [*487] * Representations in Charter-Parties. — If a vessel is described in a charter-party as A 1, it is a warranty that she is A 1 at the time the description is given, but not that she shall continue so, or retain the same letter on her arrival at the port of loading, (t) A representation in a charter-party that the ship chartered is " now at sea, having sailed three weeks ago," is a warranty ; (m) and describing her as " the steamshijJ H " is a warranty that the principal motive power is steam ; (x) but a representation that she is 180 tons when she is 200, is mere description, and not a warranty. (]/) A statement in a charter-party that the ship is expected to be at Alexandria about the 15tli of December is a warranty that she is then in such a place and under such engagement as that she may reasonably be expected to be at Alexandria about the day named. (?) When- ever a descriptive statement in a charter-party was intended to be a substantive part of the contract, it will be construed as a warranty. Such a statement is more or less important in pro- portion as the object of the contract more or less depends upon it. In some cases if not performed by the party making it, it will enable the other to repudiate the contract in toto. In other cases it gives only a claim to compensation in damages for a breach of contract. («) Substantial Performance of Conditions Precedent. — Where the plaintiff covenanted to let his ship to freight to the defend- ants, and take a cargo on board, and proceed therewith to Naples and make delivery thereof to the agents of the defendants, and having so done, receive on board a return cargo, and the defend- ants in consideration of the premises, covenanted that they would provide a complete homeward cargo and pay freight, and the plaintiff received the cargo and proceeded «ith it to Naples, where it was seized by the Neapolitan Government, it was held that the material part of the covenant was the letting of the ship (0 Hurst V. Ushorn, 18 C. B. 154; (y) Baker v. Windle, 6 EI. & Bl. 25 L. J. C. P. 209; Routh v. Macmillan, 674. 33 L. J. E.x. 38; 2 H. & C. 750; French (z) CorklingiJ. Massej', L. R. 8 C. P. V. Newgass, 3 C. P. D. 163, C. A. 395; 42 L. J. C. P. 153. {u) Ollive V. Booker, 1 Exch, 416. (a) Behn v. Burness, 3 B. & S. 753; (..:) Fraser o. The Telegraph Con- 32 L. J. Q. B. 204; Neill u Whitworth, .etnirtion Co., L. R. 7 Q. B. 566; 41 L. J. 34 lb. C. P. 155; 18 C. B. x. s. 435. Q. B. 249. 698 CHAP. II.] CAEKIERS. * 488 and the making of the voyage, and as that had been performed, the defendants were bound to provide the return cargo and pay the freight, (b) And where the plaintiffs let a ship to the defend- ants, and covenanted to take on board at Havre six pipes of brandy, with such other goods as the captain might procure on freight, and proceed therewith to Terceira, and there take a cargo on board and proceed therewith to London, and the defendants, in consideration of the * completion of the [*488] voyage, covenanted to pay freight, and guaranteed the ship a complete cargo home, and it appeared that the voyage to Terceira had been performed, and that the ship was ready to receive the return cargo at that place, it was held that the cove- nant relating to the taking on board the brandy at Havre and carrying it to Terceira was not a condition precedent to the lia- bility of the defendants upon their covenant to provide the homeward cargo, but a distinct and independent covenant, for the breach of which the plaintiff's were liable in damages, (c) Time of Performance. — If the vessel is to proceed to a par- ticular port and there load a full cargo, the loading must be completed within a reasonable time ; and if unusual and extra- ordinary circumstances arise preventing the merchant from doing what he has undertaken to do, he must make compensation in damages, as he ought to have provided against the unforeseen con- tingency by his contract, (d) Where, however, neither party is ready to perform his undertaking because both are prevented by some superior power, neither party can maintain an action against the other, (e) An engagement to load with " the usual despatch of the port" is absolute, and admits of no qualification to dispense with performance, even where the performance is hin- dered by a casualty which the charterer could not prevent. (/) Such an engagement covers the whole period from the time when the vessel is placed at the disposal of the charterer at the port (b) Storer v. Gordon, 3 M. & S. 308. v. Cotesworth, L. R. .5 Q. B. 544; 39 L. (c) Fothergill v. Walton, 8 Taunt. J. Q. B. 188; Dahl v. Nelson, 12 Ch. 576; 2 Moore, 630; Stavers v. Curling, D. 568, C. A.; 6 Ap. Cas. 88; .see post, S Sc. 740; Pust v. Dowie, 33 L. J. Q. B. p. * 510. 172; 34 ib. 127; 5 B. & S. 20; Behn v. (e) Cunningham v. Dunn, 3 C. P. D. Burness, a?ite, p. * 487. 443, C. A. ; Ford v. Cotesworth, supra. (d) Adams v. Royal Mail, &c., 5 (/) Kearon v. Pearson, 7 H. & N. C. B. K. s. 497; 28 L. J. C. P. 33; Ford 386; 31 L. J. Ex. 1. 699 * 489 CONTRACTS FOE SERVICES. [BOOK II. in a condition to receive her cargo, {g) If parties by adver- tisement liold out that they are ready to give a guarantee that a vessel shall sail on a particular day, and an intended passenger takes a herth on the strength of the assurance, the time named will be of the essence of the contract. (A) But this is not the case if merchandise is shipped on board and the vessel carries it to the place of destination. Where by charter-party the plain- tiff let his vessel to freight to the defendant, and covenanted that the vessel should sail with the next wind on a voyage to Cadiz, and the defendant covenanted that if tlie ship went the intended voyage, and returned to the Downs, the plaintiff should have so much by way of freight for the voyage, the substance of the cove- nant was considered to be that the ship should perform [*489] the intended voyage, that being the * primary intention of the parties, and not merely tliat she should sail with the next wind, which might change every hour, and that this was shown by the covenant of the defendant, who was to pay so much for the performance of the voyage, and not merely for sailing with the next wind, (t) And where the covenant was that the vessel should proceed with the first convoy to Spain and Portugal, and there make a delivery of the cargo, &c., in consideration whereof the defendant covenanted to pay freight, it was held that the main object of the contract was the performance of the voyage, and that the sailing with the first con\'oy was not a condition prece- dent to the plaintiff's right to recover freight for the voyage actu- ally performed, but a distinct co^•enant, for the breach of which he was liable in damages, [k) So where the covenant was that the ship should sail on freight to Demerara on or before the 12th of February, and the vessel did not sail until the 12th of March, Lawrence, J., held that, as the voyage had been actually per- formed, and the cargo conveyed to the destined port, and the profit of it gained by the defendant, there could be no foundation for saying that the defendant should not pay the freight for it ac- cording to the covenant, and that he mio-ht brinij a cross action to (g) Ashcroft'i). Crow Orchai'd Colliery (/) Constables. Cloberie, Palm. 397; Co., L. R. 9 Q. P). 540; see, however, the Bornmann v. Tooke, 1 Campb. 377. casenpost, p. *511. (k) Davidson v. Gwynne, 12 East, (h) Cranston v. Marshall, 5 Exch. 380. 395; 19 L. J. Ex. 340. 700 CHAP. II.] CARRIERS. * 490 recover damages for the not sailing in time, if he had sustained any. (1) And where the plaintiff let his vessel to the defendant and covenanted forth witli to make her tight, staunch, and strong, and well and sufficiently manned and victualled, &c., for a twelve months voyage, and the defendant covenanted to pay freight so much per ton per month, and the vessel was taken into the service of the defendant, who used her for several months, and then refused to fulfil his covenant to pay freight on the ground that the plaintiff had not manned and victualled the ship, and made her tight and strong, according to his cove- nant, it was held that as the defendant had not repudiated the ship because she was not forthwith made tight, staunch, and strong, but had taken her into his service and navigated her, he had no right to insist that the forthwith making her tight, &c., was a condition precedent to his own liability upon the covenant, (m) But where the plaintiff agreed to charter a ship at the completion of her then voyage, and she was detained as unseaworthy, and the repairs not finished for two months, it was held that the plaintiff had not got a ship reasonably fit for the purpose for which it was hired, and that he might aban- don the charter-party, (m) Reasonable Time of Performance. — If a shipowner covenants * generally that a ship shall sail to a par- [*490] ticular port, and there take on board a cargo to be pro- vided by the charterer, the sailing of the vessel direct and with- out any deviation or delay to the appointed port is not a condi- tion precedent to the charterer's liability to provide and ship the cargo ; but if the delay has been unreasonable, and the char- terer has thereby lost all the benefit of the voyage, and been prevented from procuring the cai'go, he will then be released from his liability upon the contract, (o) Waiver of Time of Performance. — If a shipowner agrees that his vessel shall leave England for a foreign port on or before a (0 Hall V. Cazenove, 4 East, 477. 265; Tairabochia v. Hickie, 1 H. & N. (m) Havelock v. Geddes, 10 East, 183; 26 L. J. Ex. 26; Hurst v. Usborne, 584. 18 C. B. 144; 25 L. J. C. P. 209; Jack- (re) Tully V. Howling, 2 Q. B. D. son d. Union Marine Ins., L. E. 8C. P. 182. 572; 10 C. P. 125; see Dahl v. Nelson, (o) Clipsham v. Vertue, 5 Q. B. 6 Ap. Cas. p. 53, per Ld. Blackburn. 701 * 491 CONTRACTS FOR SERVICES. [BOOK II. particular day to bring back a cargo, the departure of the vessel at the time specified is so far of the essence of the contract, that the charterer or freighter will not be bound to provide the cargo and use the ship and pay freight, unless the vessel sails at the time appointed {ante, p. * 486), and proceeds by the direct and usual course to the place of destination. If the failure to depart at the time specified is such, or the deviation is so long and unreasonable, as to have put an end to the whole object the freighter had in view in chartering the ship, {p) but if the ves- sel sails after the time, and the charterer nevertheless ships the cargo on board and uses the ship, the time of the vessel's sailing from England is no longer of the essence of the contract, and he cannot refuse to pay freight and to fulfil his part of the engage- ment because the vessel did not sail on the exact day specified. If it is covenanted by the shipowner that the ship shall be at a particular port by a day named ready to take a cargo on board, the charterer or freighter may not be bound by his covenant or agreement to ship a cargo on board and pay freight, if the vessel is not really at the place appointed by the day named ; but if, after the day has passed, the cargo is shipped on board, pursuant to the covenant, the time of shipment cannot be relied upon as a condition precedent to the payment of the freight {ante, p. * 488). Mode of Performance — Complete Cargo. — The performance of a contract that a vessel shall sail to a foreign port and there load a particular cargo, is to be regulated, as regards the loading of the cargo, by the custom and usage of the port where the cargo is to be taken on board, {q) If the charterer has agreed to load the ship with a full and complete cargo, he is [*491] bound, iu certain cases, *to fill up interstices with broken stowage, {r) In some cases he may load a full cargo of the lightest conmiodities ; and if any ballast is then wanting, it must be put in by the master, (s) It is the duty of the owner of a vessel to stow the cargo with as much skill as a (p) Freeman v. Taylor, 1 M. & So. (r) Cole v. Meek, 15 C. B. n. s.795; 182; 8 Bing. 124; OUive v. Booker, 33 L. J. C. P. 183. 1 Exch. 421. (s) Irving?.. Clegg, 1 Bing. N. C. 53; (?) Cuthbert v. Gumming, 11 Exch. Moorson v. Page, 4 Campb. 103. 408; 24 L. J. Ex. 310; Hudson v. Clem- entson, 18 C. B. 213. 702 CHAP. U.] CABKIEES. *491 competent stevedore can do. But he is not responsible to the charterer when the stevedore is appointed by the latter, al- though it is provided that he is to act under the master's orders ; for such a provision only means that the master is to have a general control over the stevedore, so as to secure the proper trim and safety of the ship, (t) Impossibility of Performance — Contracts to procure and carry Cargoes and Merchandise. — We shall hereafter See that it is a rule of law that whenever a party enters into an absolute and unq^ualified contract to do some particular act, the impossibility of performance occasioned by inevitable accident, or by some unforeseen occurrence over which he had no control, will not release him from the obligation of his contract. («) Therefore, if a shipowner has covenanted to procure and ship on board a cargo of guano, corn, or timber at a specified port, the circum- stance that no guano, corn, or timber vi^as to be procured at that port, (x) or that its exportation had been prohibited, (^) or that the loading of it on board was prevented by an embargo, (z) or by want of water, (a) or by the plague, (6) will not constitute an answer to an action for the non-performance of the contract. Implied Authority of the Agents of Ship-charterers. — The agent of the charterer of a ship to whom the ship is addressed for loading under a charter-party, has no implied authority to substitute a different voyage from that which is stipulated for by the charter-party, and cannot by agreement with the ship- master substitute a different port of loading, or a different quality or description of cargo, from that prescribed by the charter-party, (c) Shipment and Carriage of Merchandise under Bills of Lading. — When the use of an entire vessel or a certain amount of stowage therein is not contracted for, but the merchant or owner (0 Blaikie v. Stembridge, 6 C. B. N. s. (a) Schilizzi v. Derry, i Ell. & Bl. 9a9; 28 L. J. C. P. 329. 886. (m) Post, p. 'ligs. (b) Barker v. Hodgson, 3 M. & S. (x) Hills V. Sughrue, 15 M. & W. 267; Marquis of Bute «. Thompson, 13 261; Kirk v. Gibbs, 1 H. & N. 815; 26 M. & W. 487. L. J. Ex. 209. (c) Sickens v. Irving, 7 C. B. N. s. (y) Blight V. Page, 3 B. & P. 295, n. 165; 29 L. J. C. P. 25. (s) Sjoerds v. Luscombe, 16 East, 201. 703 * 492 CONTRACTS FOli SERVICES. [BOOK II. of the goods merely sends certain parcels or packages of goods on board, to be conveyed to the port of destination, the master or commander of the vessel, or some person acting for him, usually gives a receipt for them, and the master after- [*492] ward signs and delivers to * the merchant sometimes two and sometimes three parts of a bill of lading {post, p. * 935), of which the merchant commonly sends one or two to his agent, factor, or other person to whom the goods are to be delivered at the place of destination : that is, one on board the ship with the goods, another by the post or other conveyance, and one he retains for his own security, (d) The bill of lading is a written or printed memorandum, signed by the master, ac- knowledging the shipment of the goods on board, and promising to deliver them at the port of destination to a person named as the consignee, or his assigns, on payment of freight, primage, and average, " the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, excepted." The master, who thus acknowledges the receipt of the goods, and promises to carry and deliver them, is personally responsible for the fulfilment of his engagement ; (e) and the shipowner or charterer, who receives the fruit and earnings of the ship, is also liable upon the bill of lading, although he is not named therein. (/) Delivery to the shipowner's servants alongside the vessel is equivalent to a delivery on board. ((/) The duty to deliver the goods under a bill of lading arises on presentment of the bill ; and if it is not presented to the master on the arrival of the ship at her place of destination, the master is not bound to keep the goods for an indefinite time on board his ship, but may deliver them to any trustworthy person to be kept until the bill of lading is presented. (A) A bill of lading signed by the master in his own name is not conclusive upon the shipowner as to the shipment of the goods mentioned therein, {i) But it is (cQ Abbott on Shipping, by Serjt. Lim., ■v. Nettlesliip, L. R. 3 C. P. 499; Shee, 279. 37 L. J. C. P. 237. (e) Domat, lib. 1, tit. 16, sect. 2. (h) Howard v. Shepherd, 19 L. J. (/) Cannan v. Meaburn, 8 Moore, C. P. 255; 9 C. B. '321; and see the 25 127. & 26 Vict. c. 63, sect. 67, post, p. * 502. {g) British Columbia & Vancouver (i) Grant v. Norway, 10 C. B. 688; Island Spar, Lumber, and Saw-mill Co., Hubberstey v. Ward, 8 Exch. 334; Jessel 704 CHAP. II. J CARRIERS. *493 30 in the hands of a consignee or indorsee for valuable consider- ation, as against the master or other person signing the same, notwithstanding that such goods, or some part thereof, may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same, that the goods had not been in fact laden on board. But the master or other person so signing may exonerate himself in re- spect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or of some person under whom the holder claims. (,/) The person actually putting the *goods on board is the shipper, and the expression [*493] " wholly," &c., only means that the master or other per- sons signing must not in any way be mixed up with the fraud, (k) The consignee has no right to deduct from the freight payable on delivery of goods the value of articles which, though men- tioned in the bill of lading, turn out not to have been put on board. Q) Countermand of the Shipment. — Re-delivery of the Goods to the Consignor. — When goods have been shipped by a charterer or consignor on board a vessel to be carried and delivered to the consignee, pursuant to a contract of sale, or under bills of lading, or under any contract by which tlie ownership and right of property in the goods have been transferred to the consignee or some third party, the consignoi-'s power over the goods is gone, and he cannot lawfully countermand the consignment and require the goods to be delivered back to him. He cannot, after he has ceased to be the owner of them, stop them in transitu, and prevent their delivery to the consignee, unless the latter has become bankrupt [post, p. *956). But if the goods are merely addressed to the consignor's agent for sale, or under circum- stances which do not divest the consignor of his ownership and right of property in the goods, he may countermand the consign- ment and require the goods to be returned to him, subject to the V. Bath, L. E. Ex. 267; 36 L. J. Ex. {k) Valieri v. Boyland, L. R. 1 C. P. 149; Brown v. Powell Coal Co., L. E. 382; 35 L. J. C. P. 215. 10 C. P. 562. (I) Meyer v. Dresser, 16 C. B. N. s. (j) 18 & 19 Vict. c. Ill, sect. 3. 646 ; 33 L. J. C. P. 289; anU, p. * 197, post, p. * 966. VOL. I. 45 705 * 494 CONTKACTS FOE SERVICES. [BOOK II. following qualifications and restrictions. If the ship is a general ship, carrying other goods besides those of the consignor, the goods must be demanded back a convenient time before the period appointed for the ship's sailing, and the demand must be accompanied by a tender of the freight and of the reasona- ble costs and charges of the re-shipment and re-delivery of the goods, and the demand must appear to have been made at a time when it was reasonably in the power of the master to comply with it, without injury to the cargo or the property of other parties on board, and without creating delay in sailing. If the entire vessel has been chartered, the charterer may demand back the goods, on tendering all the reasonable charges and lawful claims of the shipowner and master upon them, together with the expenses of re-shipment, (m) By the Spanish commercial code, every person who embarks goods in a general ship may unload the goods shipped, paying half freight, the expense of loading and unloading, and all tlie damage to the other shippers, unless these last oppose the unloading, in wliich case they are entitled to the goods, and must take them upon themselves, pay- ing the contract price, (n) An owner of goods shipped [*494] * to proceed to a foreign port has a right to have them re-delivered to him when the vessel, having commenced her voyage, meets v?ith a disaster whereby the goods are dam- aged so much that they cannot be profitably carried to their destination, (o) Loss of or Damage to Goods by the Way.^ — Whenever a party has absolutely contracted to carry cargoes or merchandise 1 In general, the presumption is against the carrier, where he alleges the clangers of navigation (Bearse v. Ropes, 1 Sprague, 331 ; Hunt v. Cleveland, 6 McLean, 76; The Emma Johnson, 1 Sprague, 527), or insufficiency in the packing as reasons for the loss of the goods in his charge (The Live Yankee, Deady, 420); the packing othervrise will he presumed to be sufficient (English v. Ocean Steam Nav. Co., 2 Blatchf. 425). It is for the carrier to show proper stowage. Edwards I'. The Cahawha, 14 La. Ann. 22-t. "Where goods are shipped under the common bill of lading, it is presumed that they were intended to be put under deck. Ver- nard v. Hudson, 3 Snmn. 405; The Pcytona, 2 Curt. 21. If damage existed in the (m) Thompson v. Small, 1 C. B. 328; (o) Blasco v. Fletcher, 14 C. B. N. S. 14 L. J. C. P. 157. 147; 32 L. J. C. P. 284. (k) Cod. de Com. 765, ai-t. cited 1 0. B. 355. 706 CHAP. II.] CARRIERS. * 494 from one place to another, subject to certain express exceptions, be has impliedly contracted to carry them safely ; {p) and the circumstance that he has been prevented from fulfilling his con- tract by some casualty or inevitable accident will constitute no answer to an action brought against him for the recovery of damages for the breach of contract, if the casualty has not been expressly provided against by the contract. Therefore, where the defendant agreed to carry the plaintiff's goods by ship from Gibraltar to London, calling at Cadiz, and the goods were seized by the revenue authorities at Cadiz, and condemned and sold, it was held that such seizure and sale formed no answer to an action for the non-delivery of the goods, {q) If the vessel be- comes disabled, and gets to port in a sinking state, the master is bound to transship and forward the cargo, if he has the means of transshipment at hand, (7-) and is allowed a reasonable time to do so ; (s) but if the vessel is wrecked, and the master has no means of transshipment {t) and no prospect of obtaining any, or if the cargo is of a perishable na^ture and cannot be transshipped and forwarded to the place of destination without risk of serious injury or total destruction, lie is then clothed with an implied authority from the owners of such cargo to do the best he can with it for their benefit ; and if, being unable to communicate with the owner, he acts hona fide with ordinary diligence, fore- thought, and prudence, he exempts his employers, the ship- cargo when it was laden on board, this must be shown by the shipowners (The Martha, 01c. Adm. 140); but if a box of goods is delivered in externally good order, the carrier cannot be held liable (Wentwortli v. Realm, 16 La. Ann. 18). Bad stowage will be presumed, where goods suffered from the sweating of the hold (Montgomery v. The Abby Pratt, 6 La. Ann. 409); and where a cargo is injured from apparently no cause, the presumption will be raised that the .ship was in an unseaworthy condition (Cameron v. Rich, 4 Strobh. 168). If she strikes on an unknown snag or rock, the accident will be presumed to be inevitable. Steamboat Co. v. Bason, Harp. 262; Williams «. Grant, 1 Conn. 487. [f) Rogers v. Head, Cro. Jac. 262; (s) The Soblomsten, L. R. 1 Adm. Matthews 1). Hopping, 1 Keb. 852. 293; 36 L. J. Adm. 5. (q) Spence 0. Chodwick, 10 Q. B. (t) As to the duty of the master to 517; 16 L. J. Q. B. 313; Evans v. trans.ship and forward the goods, see Button, 5 Sc. N. R. 670; 2 Dowl. Shipton ■». Thornton, 9 Ad. & E. 337; N. s. 600; Goslings. Higgins, 1 Campb. Gibbs v. Grey, 2 H. & N. 30; 26 L. J. 450. Ex. 286; Mathews v. Gibbs, 2 El. & El. (r) Cannan v. Meaburn, 8 Moore, 282; 30 L. J. Q. B. 55; but see The 127. Hamburg, 32 L. J. Adm. 161. 707 * 495 CONTRACTS FOE SERVICES. [BOOK II. owners, from all liability for the loss, (u) But where there is no urgent necessity for selling the goods, and the master can com- municate with the owners, he must not sell without leave of the owners, (x) and if he does, such sale is void, (y) There is a duty on the master of a ship as representing the shipowner [*495] to take reasonable *care of the goods intrusted to him, not merely in doing what is necessary to preserve them on board the ship during tlie ordinary incidents of the voyage, but also in taking active measures, when reasonably practicable under all the circumstances, to check and arrest the loss or deterioration resulting from accidents, for the necessary and immediate consequences of which the shipowner is not liable by reason of exceptions in the bill of lading ; and for neglect of this duty by the master, the shipowner is responsible to the ship- per, (z) But he is not entitled to carry on goods in an unfit state against the express \\ish of the shippers in order to earn the freight, (a) Damage done to a cargo by rats is not a danger or accident of the seas; and, therefore, if a ship is greatly infested by rats, and serious damage done to the cargo, the undertaker of the work of carrying is responsible for the injury, although he may have kept cats on board for the express purpose of destroy- ing the rats, (b) Of the Implied Promise to carry safely. — Whenever gOods have been bailed by one man to another upon the faith of an express or implied undertaking by the latter to carry them to a distant part, it is no answer to an action brought against him to recover damages for the breach of his engagement, to say that the goods were lost by the way, the very fact of the loss afford- ing jjri/na facie evidence of neglect and want of care, (c) If the goods have been stolen, or consumed by fire, or destroyed by accident, without fault or neglect or want of care and caution on (w) The Gratitudine, 3 Rob. 261; P.. 246; 7 Q. B. 225; 41 L.J. Q. B. Ireland v. Thompson, 4 C. B. 168; 17 158. L. J. C. P. 241; The Australasian Steam (re) Notara v. Henderson, L. R. 5 Q. Co. V. Morse, L. R. 4 P. C. 222. B. 246; ib. 7 Q. B. 225; 39 L. J. Q. B. (:c) Acatos v. Burns, 3 Ex. D. 282, 167; 41 ib. 158. ^- ^- (*) Laveroni v. Drury, 8 Exch. 170; (y) Atlantic Mutual Ins. Co. ■!). Huth, 22 L. J. Ex. 2; Kay d. Wheeler, L. R. 16 Ch. D. 474. 2 C. P. 302; 36 L. J. C. P. 180. (;) Notara v. Henderson, L. R. 5 Q. (c) Parry v. Roberts, 3 Ad. & E. 120. 708 CHAP. II.J CAKEIEES. *496 the part of the undertaker of the work, the latter stands excused, and may avail himself of the robbery or the unavoidable accident as an answer to an action brought against him for the non- deli^•ery of the goods to the consignee. " He is only," observes Holt, C. J., " to do the best he can ; and if he be robbed, &c., it is a good account ; for it would be unreasonable to charge him Avith a trust farther than the nature of the thing puts it into his power to perform it." {d) A loss by theft or secret purloining of goods is •prima facie evidence of negligent keeping ; and the carrier must rebut this presumption by showing that he had taken all such precautions as appeared to be necessary to guard against it. In an action against the commander of a ship of war for the loss of two casks of dollars which had been delivered to him to be carried from the Eiver Plate to London upon freight for hire, it appeared that on the arrival of the ship in the Thames the two casks had *been opened and pluu- [*496J dered by the crew ; and it was held that the very occur- rence of the loss was prima facie evidence of negligent keeping on the part of the defendant, and that he was responsible for the loss. («) In the contract of a shipowner to carry goods shipped on board his vessel there is an implied condition that the vessel shall be seaworthy, (/) except as to latent defects. Iiimitation of Liability by Special Contract — There are certain cases, as we shall presently see, where a carrier contracts for the conveyance of very perishable or fragile articles, in which he may accept the goods and contract to carry them on the express terms that he shall not be responsible for damage done to them in the transit (post, p. * 541). Grenerally speaking, however, it is not competent to a party to enter into a contract for the per- formance of a particular duty, and by the same contract to stipu- late that he shall be exempt from all legal responsibility if he neglects to do what he has undertaken to perform. " We can- not," observes Lord Ellenborough, " construe a contract for the carriage of goods between the owners of vessels carrying goods (d) Holt, C. J., 1 Smith's L. C, 6th N. s. 59; 32 L. J. C. P. 211; where the ed. 181, 182. contrary was held (although it was (e) Hodgson v. Fullarton, 4 Taunt, admitted that an action would lie for 787; Hatehwell v. Cooke, 6 Taunt. 577. negligence), and which does not appear (/) Kopitoff V. Wilson, 1 Q. B. D. to have been cited in Kopitoff ». Wilson. 377; but see Schloss v. Heriot, 14 C. B. 709 * 497 CONTRACTS FOE SERVICES. [BOOK II. for hire and the persons putting the goods on board, so as to make the owners say we will not be answerable at all for any loss occasioned by our own misconduct ; for this would in effect be saying, ' We will be at liberty to receive your goods on board a vessel, however leaky ; we will not be bound to provide a crew equal to the navigation of her ; and if through these defaults the goods are lost, we will pay nothing.' " {g) A stipulation in a bill of lading that the shipowner is not to be accountable for leakage or breakage, absolves him from respon- sibility for leakage and breakage the result of mere accident, where no blame is imputable, or for leakage the result of bad stowage, where the shippers have themselves superintended the stowage, (/i) but does not exempt him from the obligation which the law imposes upon him of taking reasonable care of goods intrusted to him to be carried, {i) And an exception in a bill of lading of "accidents or damage of the seas, rivers, and steam navigation, of whatever nature or kind soever," does not protect the shipowner from liability for damage arising from [*497] a collision caused *by gross negligence of his ship's master and crew, (k) An exception of loss by thieves means prima facie persons outside the ship, and not belonging to it. Q) Loss by the Act of God, Dangers and Accidents of the Seas, Rivers, and Navigation. — From losses occasioned by the act of God, by the Queen's enemies, and the dangers and perils of the sea and of navigation, the carrier by water is, and always has been, exempt by the common law ; but he is not exempt, nor does the exception in the bill of lading or other contract of affreightment exempt him, from accidents occasioned by his own negligence and misconduct or want of skill, or the negligence, misconduct, or want of skill of the persons whom he has in- trusted with the navigation of the vessel, {m) The expression Uj) Lyon V. Mells, 5 East, 438; Ellis General Steam Navigation Co., L. E. 3 V. Turner, 8 T. R. 531; .see, however, C. P. 14; 37 L. J. C. P. 3. The Duero, L. R. 2 A. & E. 293; 38 L. (/.) Lloyd v. Gen. Iron Screw Col. J. Adm. 69. Co., 3 H. & C. 284; 33 L. J. Ex. 269. (h) Ohrloff V. Briseall, L. R. 1 P. C. (Z) Taylor v. Liveipool & Great Wes- 231; 35 L. J. P. C. 63. tern Steam Co., L. R. 9 Q. B. 546. ' (i) Phillips V. Clark, 2 C. B. N. s. (m) Mansfield, C. J., 1 Doug. 278; 164; 26 L. J. C. P. 168; Czech v. The Siordet v. Hall, 1 M. & P. 561. 710 CHAP. II.] CARRIERS. * 498 "act of God" denotes natural accidents, such as lightning, earthquake, aud tempest, and not accidents arising from the negligence of man. And the term " dangers and accidents of the sea and of navigation" denotes the dangers and accidents peculiar to the ocean and to navigation from port to port which no human care or skill can guard against or surmount, such as accidents resulting from the irresistible violence of the winds and waves, and from tides and currents ; (w) the destruction of a perishable cargo or of living animals from the rolling of a ship in a storm ; (o) jettison of goods from irresistible necessity to lighten the ship aud save her from foundering ; [p) the ground- ing of a vessel on the hard and uneven bottom of a dry harbor in which she had been obliged to take refuge, (q) or on a sunken rock or sandbank not generally known, and not marked on the ordinary charts or maps ; irresistible attacks by pirates ; (r) the accidental breaking of tackle by which the vessel is moored in port ; (s) or accidental collisions in fogs or storms, where no blame is imputable to either of the vessels striking together, (t) When a Loss occasioned by Negligence or Misconduct is not a Loss from Peril of the Sea, though the Sea does the Mischief. — The general rule in cases of insurance is that the immediate and not the remote cause of loss is to be considered ; but this rule does not apply as between the owner and carrier of goods. Thus if a vessel deviates from its proper course, and sails un- necessarily through' dangerous straits and channels, or into seas infested with pirates, and is wrecked or plundered in consequence of such deviation, *the loss, though proxi- [*498] mately caused by what is usually termed " a perO. of the sea," is deemed to have been occasioned by the misconduct of the master or commander, who had improperly gone out of his way to meet the danger. A collision arising from the negli- gence of the crew of the ship is not a peril of the sea within the meaning of an exception of loss arising from perils of the sea in (») Hodgson V. Malcolm, 2 B. & P. (q) Fletcher v. Inglis, 2 B. & Aid. N. E. 338. 315. (o) Lawrence v. Aberdein, 5 B. & Aid. (r) Pickering v. Barclay, Styles, 132. 110. (s) Laurie o. Douglas, 15 M. & W. (p) Bird V. Astcock, 2 Bulst. 280. 746. (t) BuUer v. Fisher, 3 Esp. 67. 711 *498 CONTEACTS FOE SEEVICES. [BOOK II. a bill of lading, (z) If the cargo is seriously damaged or de- stroyed by rats, the loss is not the result of a danger or an acci- dent of the seas, but of neglect and want of care on the part of the master and crew, (a) If a vessel becomes unseaworthy, and the owner neglects to avail himself of an opportunity to repair her, and thereby causes the loss of the cargo, the loss is the result of negligence, (jb) If the vessel at the time of the commencement of the voyage is unseaworthy, — if the hull is worm-eaten or gnawed by rats, or the timbers are rotten, and the vessel is shaken to pieces and founders in a gale which a stout and seaworthy ship would have withstood in safety, — -the loss, though proximately caused by the violence of the winds and waves, has not in contemplation of law been occasioned by perils of the seas, but by the negligence and misconduct of the owner of the ship, who is responsible to the owner of the cargo for the loss of the goods shipped on board, (c) When, on the other hand, from the rolling and laboring of a ship in a storm a number of horses, though properly stowed and secured on board at the commencement of the tempest, broke loose and kicked each other to death in the hold of the vessel, the loss, though proximately caused by their own hoofs, was deemed to have been occasioned by peril of the sea. (d ) " If a ship perish in consequence of striking against a rock or shallow, the circumstance under which that event has taken place must be ascertained in order to decide whether it happened by a peril of the sea or by the fault of the owner, carrier, or master. If the situation of a rock or shallow is generally known, and the ship is not forced upon it by adverse winds or storms and tempests, the loss is to be imputed to the fault of the master. And it matters not, in such a case, whetlier the loss arises from his rashness in not taking a pilot, or from his own ignorance or unskilfulness. On the other hand, if the ship is forced upon such a rock or shallow by adverse winds or tempests, or if the shallow is occasioned by a recent and sudden collection of sand (z) Grill V. The General Iron Screw (h) Worms v. Storey, 11 Exch. 430; Col. Co., L. E. 1 C. P. 600: ib. 3 C. P. 25 L. J. Ex. 1. 476; 35 L. J. C. P. 321; 37 L. J. C. P. (c) Hunter i). Potts, 4 Campb. 202. 205. (d) Gabay v. Lloyd, 3 B. & C. 793. (a) Laveronl v. Drury, ante, p. * 495. 712 CHAP. II.J , CARRIERS. *499 in a place where ships could before sail with safety, or if the rock or shallow is not * generally known, — in [ * 499 ] all these cases the loss is to be attributed to the act of God, and it is deemed a peril of the sea." (e) If the carrier by water overloads his vessel, and so causes it to founder in a gale of wind, the loss is occasioned by the negligence of man ; but it is otherwise if the boat has not been surcharged, but sinks solely through the violence of the winds and waves. (/) If a hoyman shoots a bridge in tempestuous weather or at a danger- ous period of the tide, and the hoy is sunk, the loss is occa- sioned by the negligence of the hoyman; but if he has shot the bridge at a proper time and in proper weather, but the hoy has been taken- aback by a sudden gust of wind, and has been driven against the abutments of the bridge and sunk, and the "oods on board lost, the loss is deemed to have been occasioned by the act of God, and the carrier, consequently, is exempt from responsibility in respect thereof, (g) Proof that the Loss -was Occasioned by Negligence, and not by a Peril of the Sea. — In order to determine whether the loss has or has not been occasioned by the negligence or want of skill of the servants of the shipowner, " the established rules of nautical practice, the usages and regulations of particular ports and rivers, the state of the wind, the tide, and the light, the degree of vigilance of the master and crew, and all other circumstances bearing upon the conduct and management of the vessel must be considered." (A) Loss by Fire — Limitation of the Responsibility of O^wnera and Part Owners of Ships by Statute. ^ — By the 17 & 18 Vict. 1 The corresponding statute in the United States is the Act of Congress of March 3d, 1851, now embodied in Eev. Stat, scots. 4282-4288. The decisions under it are collected, 4 Abb. Nat. Dig. tit. Shipping, sects. 333-338 ; 5 ib. sect. 110; 6 ib. 97-102; 7 ib. 44, 45 ; 8 ib. 30-36. See further, The Benefactor, 103 U. S. 239; Matter of Liverpool, &c. Steam Co., 3 Fed. Reporter, 168 ; Thom- masen v. Whitwill, 12 ib. 891 ; lie Norwich, &c. Transp. Co., 17 Blatchf. 221; U. S. Dig. tit. Shipping, sect. 717 ; article on Limited liability of shipowners, by J. F. Mosher, 22 Alb. L. J. 165 ; ib. 185. The baggage of passengers is not "merchandise" within the statute. The Marine City, 6 Fed. Reporter, 412. (e) Abbott, by Shee, 389, 8th ed. (g) Amies v. Stevens, 1 Str. 128. (/) 22 Assiz. 41; Williams v. Lloyd, {h) Abbott, ut sup. 207; Tuff v. War- Jones's Rep. 180. man, 5 C. B. K. s. 573. 713 *500 CONTRACTS FOE SERVICES. [BOOK II. c. 104, sect. 503, it is enacted that no owner of any sea-going ship or share therein shall be liable to make good any loss or damage which may happen without his fault or privity to any goods or merchandise taken on board such ship by reason of any tire happening on board, or to any gold, silver, diamonds, watches, jewels, or precious stones taken on board, by reason of any robbery, embezzlement, making away with or secreting thereof, unless the owner or shipper thereof has at the time of shipping the same inserted in his bills of lading, or otherwise declared in writing to the master or owner of such ship, the true nature and value of such articles, (i) And by the 25 & 26 Vict. c. 63, sect. 24, the owners of any ship, whether British or for- eign, {k) shall not in cases where all or any of the following events occur without their actual fault or privity, that is to sa}^ : — (1) where any loss of life or personal injury is [*500] * caused to any person being carried in such ship; (2) where any damage or loss is caused to any goods, mercha.ndise, or other things whatsoever on board any such ship ; (3) where any loss of life or personal injury is by reason of the improper navigation of such ship as aforesaid caused to any person carried in any other ship or boat ; (I) (4) where any loss or damage is, by reason of the improper navigation of such ship as aforesaid, caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat — be answerable in damages in respect of loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, merchandise, or other things, to an aggregate amount exceeding £15 for each ton of their ship's tonnage ; nor in respect of loss or damage to ship's goods, merchandise, or other things, whether there be in addition loss of life or personal injury or not, to an aggregate amount exceed- ing X8 for each ton of the ship's tonnage. By the 17 & 18 Vict. c. 104, sect. 516, nothing contained in the act is to take away any liability to which any master or seaman, being also (i) The nature of the articles must (?) As to the mode of procedure in he descril)ed, and their money value case of loss of life or personal injury, stated. Williams v. Afric. St. Ship. Co., see the 17 & 18 Vict. c. 104, sects. 507- 1 H. & N. 302; 26 L. J. Ex. 69. 512. (k) The Anialia, 32 L. J. Adm. 191. 714 CHAP. n.J CAERIERS. * 501 owner or part owner of the ship to which he belongs, is subject in his capacity of master or seaman. The limitation of liability under the act of 1854 does not extend to the owner of any lighter, barge, boat, or vessel used solely in rivers or inland navigation, or to any ship or vessel not duly registered, (m) The acts, it will be seen, embrace two descriptions of losses : the one a loss or damage to the cargo laden on board the ship occasioned by the negligence of the master or mariners, and rendering the shipowner liable ex con- tractu at common law to the extent of the value of such cargo ; and the other a loss or damage to the ship or cargo of some third party, occasioned by the negligence or misconduct of the master, in respect of which the owner is liable ex delicto, but not upon any contract. To an action ex delicto in respect of an injury to the property of a third party, both the shipowner and the master are liable — the owner as the employer responsible for the wrongful act done by the servant in the course of his employment, and the other as the party actually committing the injury ; and it is this liability ex delicto to which the act of 1854 refers when it provides that nothing therein contained shall lessen or take away any responsibility to which any master or mariner might then by law be liable, notwithstanding such master or mariner might be an owner or part owner of his ship or vessel. If the master be a *part [*501] owner, his responsibility, if he is sued {ex delicto) in his character of master, and not as one of several part owners, will not be limited by the act ; but if he is sued as one of the part owners with the other part owners, the circumstance of the loss being occasioned by his fault and with his privity will not take away from the other part owners the protection which the statute intended to give them, {n) If the ship is sunk by a collision with another vessel, the shipowner is not released from liability by the loss of his vessel, (o) Losses occasioned by the Negligence of Iiicensed Pilots. — The 17 & 18 Vict. c. 104, sect. 388, further exempts the owner (in) Morewood v. PoUok, 22 L. J. (o) Brown v. Wilkinson, 15 M. & Q. B. 250; 1 Ell. & Bl. 743. W. 391; 16 L. J. Ex. 34; The Mellona, (m) Bayley, J., Wilson v. Dickson, 2 12 Jur. 271. B. & Aid. 13. 715 * 502 CONTEACTS FOE SERVICES. [BOOK II. and master of a ship from liability in respect of losses or dam- age occasioned by the neglect or incapacity of a licensed pilot in charge of the vessel. " The shipowners are not responsible when they take a pilot by compulsion ; but in all other cases they are responsible for the acts of the pilot." (75) " It is the duty of the master to look after the pilot in the case of his pal- pable incompetency, or intoxication, or of the loss of his facul- ties. The taking of a pilot under the act does not relieve the shipowner from the ordinary legal consequences resulting from the negligence of the master and crew.'' {q) Delivery of Goods by Shipowners. — There is an implied engagement on the part of every undertaker of the work of carrying to proceed by the usual and ordinary course to the port of destination or place of delivery without delay, and with- out unnecessary deviation, (r) If it is customary for the carrier by water to carry merely from port to port, or from wharf to wharf, and for the owner or consignee to fetch the goods from the vessel itself, or from the wharf, as soon as the arrival of the ship has been reported, the carrier must give such owner or consignee notice of the arrival of the goods on board or at the customary place of destination, in order to discharge himself from further liability as a carrier. He cannot at once discharge himself from all responsibility by immediately landing the goods without any notice to the consignee, but is bound to keep the goods on board or on the wharf, at his own risk, for a reasonable time, to enable the consignee or his assigns [*502] to come and fetch them, (s) The Merchant * Shipping Amendment Act, 1862 (25 & 26 Yict. c. 63, sects. 67, d seq), empowers the shipowner to enter and land goods in default of entry and landing by the owner ; and notwithstanding the landing, the shipowner may, by giving notice for that purpose, preserve his lien for freight. After part of the goods have been (p) The Energy, L. R. 3 A. & E. 48; The lona, L. R. 1 P. 0. 4, 26; The 39 L. J. Adm. 25; The Ocean Wave, L. Velasquez, L. R. 1 P. C. 494; 36 L. J. R. 3 P. C. 205; The Calabar, L. R. 2 P. Adra, 19 ; The Queen, L. R. 2 A. & E. C. 238; The Lion, L. R. 2 P. C. 525; 354; 38 L. J. Adm. 39. 38 L. J. P. 57. ()■) DaviesD. Garrett, 4 M. & P. 540; (q) Dr. Lushington, The Eden, 10 6 Bing. 716. Jur. 298; The Duke of Manchester, 10 (s) Bourne v. Gatliff, 3 Sc. N. R. Jur. 865; The Iron Duke, 9 Jur. 476; 44; 8 ib. 604; 11 01. & Fin. 45. 716 CHAP. II.J CARRIERS. * 502 landed by the shipowner, the consignee may interfere and claim the remainder, if the shipowner can deliver the remainder to him without any further loss or injury than would have been the case if the consignee had been ready before any of the goods were discharged, {t) The act also provides for the sale of the goods if they are not claimed by the owner. («) Losses on board Lighters conveying Goods from the Ship to the Shore. — When the vessel is not able to discharge at a wharf, but the goods are placed in lighters to be conveyed from the ship to the shore, and are lost on their passage through the neglect or want of skill of the lighterman, the loss will fall on the owner of the goods if the lighterman is paid and employed by him ; («) but if he is employed and paid by the shipowner or carrier, he is then the servant of the latter, expediting the goods in the further prosecution of the voyage to their place of destin- ation, and the carrier, consequently, must make good the loss. Generally speaking, the task of discharging the cargo in the port of London is accomplished through the medium of public light- ermen, whose lighters are entered at Waterman's Hall, and who are public officers employed and paid by the merchants and owners of the goods. The lightermen are responsible, in their character of common carriers, to the merchant who employs them ; and the shipowner is discharged as soon as the goods have been safely loaded on board such lighters. But he is not, by the custom of the Eiver Thames, exonerated from liability until the loading is complete ; and he is not discharged from his obligation to guard the portion of the cargo that has been placed in the lighter by telling the lighterman that he has not suffi- cient hands on board to take care of it. He is, on the other hand, bound to take care of the lighter and its contents until it is fully laden and is ready to leave the side of the ship, (y) The protection afforded by the 17 & 18 Vict. c. 104, sect. 503 (ante, (() Wilson V. London, Italian, and (x) Sparrow v. Carruthers, 2 Str. Adriatic Steam Nav. Co., L. R. 1 C. P. 1236; Strong v. Natally, 4 B. & P. 61; 35 L. J. C. P. 9. 16-19. (i<) Bere.sford v. Montgomerie, 17 (y) Catley v. Wintringham, 1 Peake, C. B. N. s. 379; 34 L. J. C. P. 41; Wil- 202 ; Eobinson v. Turpin, ib. 203, n. son V. London, Italian, and Adriatic (a). Steam Nav. Co., 35 L. J. C. P. 9; L. E. 1 C. P. 61. 717 *503 CONTRACTS FOR SERVICES. [BOOK II. p. *499), to owners of sea-going vessels in respect of loss or dam- age by fire to goods or merchandise shipped on board, does not extend to the case of a fire happening on board lighters [ * 503 ] * employed by the shipowner in carrying goods from the shore to be laden on board the vessel. (2) There- fore if goods are set on fire by reason of the negligence of such lightermen, the shipowners are responsible for the damage. Payment of the Freight or Hire. — If a charter-party amounts to a demise of the ship to tlie charterer for a certain term at a certain hire, and the vessel is bailed to him pursuant to the con- tract, he is responsible for the payment of the hire at the expir- ation of the term of hiring, although the vessel may have been lost ; but if the shipowner merely grants the use of the vessel, retaining the possession of it through the medium of his own seamen and servants, the shipowner loses his right to the hire at the same time that the charterer is deprived of the use and en- joyment of the vessel. When the charter-party amounts merely to a contract by the shipowner or shipmaster for the conveyance of merchandise to a specified destination, the fulfilment of the covenant or undertaking to carry the goods, or the shipowner's readiness and willingness to fulfil it, is a condition precedent to the payment of the hire, so that the plaintiff must of necessity show the work done, or that he was ready and willing to do it, and was hindered from doing it by the defendant, before he can demand the money, (a) Ordinarily, the right to the freight does not arise until the goods are not only conveyed to their destina- tion, but also delivered ; (b) or, in the case of a charter-party, until the charterers have had the full use of the ship for the pur- poses for which they chartered it. (c) The freight may, however, by the special contract of the parties be made pa3^able on the delivery of the goods on board, (d) on the sailing, (e) or on the (z) Morewood v. Pollok, 22 L. J. Q. (6) Cato v. Irving, 5 De G. & S, 210, B. 250; 1 Ell. & Bl. 743. 224; 21 L. J. Ch. 675. (a) Tate u. Meek, 2 Moore, 291; Cam- (c) Brown v. Tanner, L. E. 3 Ch. pion V. Colvin, 3 Sc. 350; 3 Biiig. N. C. 597; 37 L. J. Cli. 923. 17; Pothier, Traite de la Charti-e-partie, (d) Andrew v. Moorhouse, 5 Taunt, part 1, aeet. 3, sect. 2; Cleary w. M'An- 438; 1 Marsh. 122; De Silvale t;. Ken- drew, 2 Moo. P. C. N. s. 216; The Soh- dall, 4 M. & S. 42; Allison v. Bristol lomsten, L. K, 1 Adm. 293; 36 L. J. Marine Ins. Co., 1 Ap. Cas. 209. Adm. 5. (e) Thompson v. Gillespy, 5 Ell. & 718 CHAP. II. J CARRIERS. * 504 final sailing of the vessel from the port of loading (/) prior to the performance of the voyage, or at any other period of time which they may choose to appoint ; but in all cases of doubtful construction, the courts will adhere to the maxim that the freight is not due until it has been earned by the performance of the work for which it is to be paid, {g) Where part of the cargo was justifiably sold for repairs before arrival at tlie port of des- tination, and sold for more than it would fetch at the * port of destination, and the proceeds paid to the char- [ * 504 ] terer, it was yet held that freight could not be claimed in respect of such part of the cargo. Qi) AVhere the freight was to be paid " within three days after the arrival of the ship and before delivery of any portion of the goods," and the ship arrived in port, but was sunk and the goods destroyed within the three days, it was held that the freight was not payable, (t) If freight is paid in advance and the cargo is lost, the freight so paid can- not be recovered back (Ic) unless the loss has been occasioned by negligence or misconduct, or want of skill in the navigation of the vessel. If by the occurrence of an accident on the voyage delay is occasioned, the master may claim a reasonable time to carry on the cargo, either in the same ship when repaired, or by transshipping it into anotlier vessel. Q) When the use of the entire vessel is bargained for, (m) and the charterer covenants or agrees to provide and ship a full cargo and pay freight therefor at so much a ton, and the shipowner sends out the vessel, the circumstance that the lading has -been pre- vented by some unforeseen cause or inevitable accident does not release the charterer from his contract. And when the goods Bl. 209; 24 L. J. Q. B. 340; Hudson v. [k) Saunders v. Drew, 3 B. & Ad. Bilton, 6 Ell. & Bl. 565; 26 L. J. Q. B. 450; Byrneu. Schiller, L. R. 6 Ex. 319; 27. 40 L. J. Ex. 177; Allison v. Bristol (/) Roelandts v. Harrison, 9 Exch. Marine Ins. Co., supra. This is con- 444; 23 L. J. Ex. 169. trary to the law in other European coun- (g) Mashiter v. Buller, 1 C'ampb. 84; tries and in America. Byrne i). Schiller, Abbott, C. J., Manfield v. Maitland, 4 sujJra. B. & Aid. 585; Vlierboom v. Chapman, (l) Cleary i). M' Andrew, 2 Moo. P. C. 13 M. & W. 230. N. s. 216. (h) Hopper v. Burness, 1 C. P. D. (m) As to putting cargo in the cabin, 137. see Mitchesonu. Nicol, 7 Exch. 929; and (i) Dathie v. Hilton, L. R. 4 C. P. on deck, see Neill v. Ridley, 9 Exch. 138; 38 L. J. C. P. 93. 680. 719 * 505 CONTRACTS FOR SERVICES. [BOOK II. have been shipped on board, the charterer cannot abandon them and refuse to pay the freight on the ground that they have been damaged or destroyed by perils of the sea, («) or by the fault of the master and crew ; (o) nor can he deduct from the freight the value of missing articles, {p) When the charterer merely coven- ants to pay freight at the rate of so much a ton, &c., for the goods actually shipped on board, and does not covenant to fur- nish any particular quantity of goods, he is only liable for the quantity of goods actually shipped ; but if he contracts for the use of the entire ship or part of a ship, or for a certain specified tonnage, the payment of freight must be proportioned to the amount of tonnage space or accommodation he has contracted for. If he covenants to ship on board a full and complete cargo, and to pay so much a ton for every ton loaded on board, he is bound to put on board and to pay freight for as much as the ship will hold and safely carry, whatever may be the [ * 505 ] amount of the burthen and tonnage of * the vessel men- tioned in the charter-party. A misdescription of the ship's burthen does not in such a case exonerate the charterer from the liability to ship on board, and to pay freight for, a full and complete cargo, provided the charterer has had an oppor- tunity of examining the ship and forming his own judgment of her capacity, and there has been no fraui.lulent misrepresentation or concealment of the truth, (j) Although the charterer has taken the whole ship, and covenanted to provide and put on board, and pay freight for, a " full and complete cargo," yet the shipowner may take on board merchandise as ballast, provided it occupies no larger space than the ballast would have done, and does not interfere with the proper shipment and carriage of the cargo, (r) Calculation of the Freight. — When freight is covenanted to be paid at the rate of so much per ton, the freight is to be calcu- lated and paid on that quantity alone which is put on board, carried throughout the whole voyage, and delivered, at the end (n) Abbott on Shipping, 380, 381, {q) Hunter v. Fry, 2 B. & Aid. 424; (o) Dakin v. O.xley, 15 C. B. N. s. Tliomas v. Clarke, 2 Stark. 450; Barker 646; 33 L. J. C. P. 115. v. Windle, 6 Ell. & HI. 675. {p) Meyer v. Dresser, 16 C. B. N. s. (r) Towse v. Henderson, i Exch. 646; 33 L. J. C. P. 289. 893. 720 CHAP. II.] CARRIERS. * 506 of it to the merchant. If, therefore, a cargo of corn increases in bulk and weight during the voyage, or after the cargo is taken out of the vessel, the freight is payable only on the quantity actually shipped on board, and not on the increased quantity delivered ; for such a cargo may be increased in bulk and de- teriorated in quality by the negligence of the master and crew during the vo}'age. (s) Payment pro rata. — If the covenant or agreement of the ship- owner or master be entire for the conveyance of a full cargo of merchandise for a specific sum, the charterer is not bound to accept and pay for half a cargo ; but if the charterer loads less than a full cargo, or if part of the cargo is lost without any default on the part of the shipowner, the whole of the sum is payable, (t) And if he agrees to pay by the bale or cask, or at the rate of so much a ton, he is bound to accept and pay for what has been actually brought and tendered to him. (m) He must pay, also, in all cases for such goods as he actually accepts; and if he voluntarily accepts goods short of the port of destina- tion, so as to raise an inference that further carriage of the goods was dispensed with, {x) he is liable upon an implied contract to pay pro rata itineris peradi. This apportionment usually hap- pens when the ship, by reason of some disaster, goes into a port short of the place *of destination, and is [*506] unable to prosecute and complete the voyage, (y) The shipowner is not entitled to freight pro rata where goods have been sold on the voyage at an intermediate port without leave from the owners where such leave was obtainable, (z) Time Freight. — When the charterer engages to pay so much per month, week, or day of the voyage, or of the ship's employ- ment, and no time is fixed for the commencement of the com- (s> Gibson v. Sturge, 10 Exch. 622; (m) Christy v. Row, 1 Taunt. 314; 24 L. J. Ex. 121; Buckle v. Knoop, L. Ritchie v. Atkinson, 10 East, 295, 310. R. 2 Ex. 125, 333; 36 L. J. Ex. 49, (x) The Soblomsten, L. R. 1 Adm. 223. 293; 36 L.J. Adm. 5; but as to when (0 Robinson v. Knights, L. R. 8 C. this inference arises, see Metcalfe v.Brit- P. 465; 42 L. J. C. P. 211; The Nor- annia Iron Works Co., 1 Q. B. D. 613; way, 3 Moo. P. C. N. s. 245; Merchant 2 Q. B. D. 423 C. A. Shipping Co., v. Armitage, L. R. 9 Q. B. {y) Vlierboom v. Chapman, 13 M. & 99; Blanchet v. Powell's Llantwit Coll.' W. 239. Co., L. R. 9 Ex. 77. {z) Acatos v. Burns, 3 Ex. D. 282, C. A. VOL. I. 46 721 * 507 CONTRACTS FOE SERVICES. [BOOK II. putation, his liability to the freight will begin on the day that the ship breaks ground and commences the voyage, and will continue during all unavoidable delays for provisions, repairs, &c., not occasioned by the negligence or misconduct of the master or owners, (a) The month is always understood to be a calendar, and not a lunar, month ; (b) and the freight becomes due in gen- eral at the expiration of each month, or other interval of time limited by the parties for its payment, whether the ship does or does not ultimately arrive at her place of destination. But where the freighter covenanted to pay freight for a vessel at so much a ton per month until her final discharge, so much of such freight as might be earned at the time of the arrival of the ship at her first destined port abroad to be paid within ten days next after her arrival there, and the remainder of the freight at specific periods, it was held that the arrival of the ship at her first destined port abroad was a condition precedent to the owner's right to recover any freight, (c) Shipo'wner's Lien for the Freight — Payment of Freight by the Consignee. — If the shipowners have by the charter-party divested themselves of the possession of the vessel in favor of the char- terer, they have, of course, no lien upon the goods shipped on board, and cannot take possession of them and detain them as a security for the rent or hire agreed to be paid for the use of the vessel, (d) But if the charter-party does not amount to a bail- ment of the ship, but the shipowners keep possession of the vessel, and contract merely to carry mercliandise for the charterer for certain freight, the delivery of the goods and the payment of the freight constitute mutual conditions to be performed at the same time, so that the shipowner may retain the cargo until he is tendered payment of the freight, (o) When, however, by the terms of the contract credit is given for the payment [*507] of the freiglit, as, for instance, if it *is to be paid a month or three months after the arrival of the ship, the carrier must forthwith deliver the goods, and rely on the subse- (a) Havelock v. Geddes, 10 East, (r) SaviUe v. Campion, 2 B. & Aid. 566; Ripley v. Scaife, 5 B. & C. 169. 503; Campion v. Colvin, 3 Sc. 388; 3 (ft) Jolly V. Young, 1 Esp. 186. Bing. N. C. 17; Tate v. Meek, 2 Moore, (c) Gibbon v. Mendez, 2 B. & Aid. 293; Paynter -o. James, L. R. 2 C. P. 17; Smith v. Wilson, 1 East, 437. 348. {d) Hutton V. Bragg, 7 Taunt. 14. 722 CHAP. II.] CARRIERS. * 507 quent performance by the charterer of his contract to pay ; (/) and if the latter becomes bankrupt prior to the arrival of tlie vessel at the port of destination, the indorsee of the bill of lading is entitled to demand the goods, and the shipowners can- not claim any lien upon them for freight, {g) If the master does not think fit to insist on his right of detentign, but delivers the goods to the consignee, and the latter afterward refuses to pay the freight, or pays the master by a bill of exchange which turns out to be worthless, the master may resort to the consignor or shipper for payment, (A) unless he has for his own convenience and accommodation preferred a biU when he might have had cash. {%) Payment to the shipowners on their demand is a dis- charge against any claim by the master ; and, on the other hand, payment to the master, in the absence of any notice from the owners to withhold it, is a valid payment as against tliem. (k) The consignee is prima facie the owner of the goods, and as such is liable for the freight ; but if he be not the owner, he is not liable for freight simply as consignee, except on a new contract to pay the freight. If the goods have always been delivered on payment of freight by the defendant, that is reasonable evidence that in the particular case he agreed to pay the freight. {I) Of the Liability for Freight resulting from the Acceptance of Goods under Bills of Lading. — It has been held that if a person receives goods under a bill of lading in which it is expressed that the goods are to be delivered to him, he paying freight, he by implication agrees to pay freight, (m) The law does not, however, imply any contract for the payment of the freight from the delivery and acceptance of less than the whole cargo, {n) or from the mere fact of the acceptance of the goods ; but it is for a jury to say whether the acceptance, coupled with the particular (/) Alsager v. St. Kath. Dock Co., (/) Coleman v. Lambert, 5 M. & W. 14 M. & W. 794; 15 L. J. Ex. 34. 505. (g) Tamvaco v. Simpson, L. E. 1 C. (m) Cock t. Taylor, 13 East, 403; P. 363; 35 L. J. C. P. 196. Wilson v. Kymer, 1 M. & S. 157; Bell (h) Tapley v. Martens, 8 T. R. 453; «. Kymer, 5 Taunt. 477; Gummv. Tyrie, Shepard v. De Bernales, 13 East, ,572; 33 L. J. Q. B. 97; 34 ib. 124; 6 B. & S. Domett V. Beckford, 5 B. & Ad. 521. 299. (i) Strong v. Hart, 6 B. & C. 160. (n) Young v. Moeler, 5 Ell. & Bl. (k) Smith V. Plummer, 1 B. & Aid. 762; s. c. nom. Moller t). Young, 25 E. 575; Atkinson v. Cottesworth, 3 B. &C. J. Q. B. 94. 648. 723 *508 CONTRACTS FOR SERVICES. [BOOK II. terms of the bill of lading under -which the goods were re- ceived, establishes the existence of a contract on the part of the consignee to pay the freight, (o) The words " he paying freight " are not essential ; " freight for the said goods " are suffi- [ * 508 ] cient. {p) Though freight * may not be payable in respect of a man's own goods conveyed in his own ship, j'et it becomes so if he makes third persons consignees of the goods under the bill of lading, {q) If the consignee receives the goods without any disclaimer of his liability, and there is no reference on the face of the bill of lading to any charter-party whereby the consignor has contracted to pay the freight, the presumption is that the consignee has agreed to pay it ; biit when the bill of lading provides for the payment of the freight as per charter-party, and the consignor has contracted by such charter-party for the payment of the freight, it does not neces- sarily follow that the consignee, by accepting the goods under the bill of lading, has himself contracted to pay it, although he is generally considered so to do. The contract for the payment of the freight inserted in the charter-party does not run with the property in the goods, and is not transferred with it so as to throw the burthen of performance upon the parties into whose hands the goods come by indorsement of the bill of lading. But it has been so much the practice for the indorsee of the bill of lading to pay the freight which the consignor or charterer has by the charter-party contracted with the shipowner to pay, that the acceptance of the goods by such indorsee without any disclaimer of his liability is evidence of a new contract and a new agree- ment for the payment of the freight mentioned therein, the con- sideration for which is the delivery of the goods to him at his request ; (r) and if such new contract is established, the remedy for the freight on the bill of lading against the consignee or his assignee co-exists with the remedy against the original consignor or charterer upon the cliarter-parly. (s) Where a charter-party stipulating for freight in a lump sum of £2800 in full of all (o) Zwilchenbart v. Henderson, 9 (r) Sanders v. Vanzeller, 4 Q. B. Exch. 722; 23 L. J. Ex. 234. 295; Kemp v. Clark, 12 Q. B. 647. (p) Weguelin ij. C'ellier, L. R. 6 H. (s) Cliristy v. Row, 1 Taunt. 300; L. 286. Sliepard v. De Bernales, 13 East, 565. (j) Weguelin v. Cellier, supra. 724 CHAP. II.] CARRIERS. * 509 charges, contained the following clause : " The captain to sign bills of lading at any rate of freight without prejudice to this charter," it was held that so long as the goods shipped remained the property of the charterers or of their agents, they were liable to the lump freight, and the shipowners had a lien for it, but that the shipowners might be bound to deliver the goods to a bona fide holder for value of the bill of lading upon payment of the freight mentioned in the bill of lading, {t) The master has no authority to draw bills of lading making the freight payable otherwise than to the owner, (m) If the amount of the freight is specified on the face of the bill of lading, it is in gen- eral conclusive between the parties, {x] Where, * there- [ * 509 ] fore, a mere nominal rate of freight was provided to be paid by the bill of lading, the shipowner being. also owner of the cargo, it was held that a subsequent mortgagee of the ship and freight could not charge the assignee of the bill of lading the current rate of freight, but was confined to the nominal freight specified on the face of the bill of lading, (y) If the receiver of the goods appears on the face of the bill of lading to be an agent acting on behalf of a known principal who is the consignee, the principal and not the agent is then liable for the freight, {z) But if the agency is undisclosed, and the principal has given the agent no authority to pledge his credit for the payment of the freight, and the goods never reach the hands of the principal, the latter cannot be made responsible for the amount of the freight ; (a) and the agent who actually received the goods under the bill of lading is then the party to be proceeded against. (&) If the consignee of goods indorsed the bill of lading to A with the words " looking to him for all freight, dead freight, and demurrage, without recourse to us," and the shipowner accepted the indorsement, and in pursuance of it delivered the goods to A, the consignee is exonerated from liability for freight (c) ; but the (t) Gledstane.s v. Allen, 12 C. B. 202. (2) Amos v. Temperley, 8 M. & W. (u) Reynolds v. Jex, 34 L. J. Q. B. 805. 251. (a) Tobin v. Crawford, 9 M. & "W. (x) Foster v. Colby, 3 H. & N. 715 ; 718. 28 L. J. Ex. 81; Shand v. Sanderson, 4 (h) Dougal v. Eemble, 3 Bing. 383; H. & lif. 389; 28 L. J. Ex. 278. 11 Moore, 250. (y) Brown v. North, 8 E.xch. 1; 22 (c) Lewis v. McKee, L. R. 2 Ex. L. J. Ex. 49. 37. 725 *510 CONTRACTS FOR SERVICES. [BOOK II. consignee, at all events where A is his agent, is hound to prove an assent on the part of the shipowner discharging him from lia- biUty ; and he does not prove such an assent by showing that the indorsement was on the bill when presented to the captain, without also showing that the captain in fact assented to it. (d ) Where a bill of lading represented the freight of goods to have been paid when in fact it had not been paid, it was held by the court that though such representation was not conclusive as between the shipper of the goods and the shipowner, yet, as against an indorsee for value of the bill of lading without notice, the freight must be held to have been paid, (e) Where by the terms of the charter-party the ship is let for a particular voyage, and the charterers are to pay the shipowners a lump freight for the whole voyage, and the master, at the re- quest of the charterers, is to make bills of lading at any rate and payable in any manner the charterers may choose, without preju- dice to the charter, this gives to the charterers the direct manage- ment as to the terms on which the bills of lading are to be signed. And when it is once shown that the master was in fact acting for the charterers, and this is made known [ * 510 ] to the * shippers, the charterers are entitled to recover the freight under the general authority which the ship- owners have conferred upon them. (/) Stipulated Payments in lieu of Freight extinguishing the Right of Lien. — When it is stipulated that a certain specified sum of money shall be paid in respect of goods shipped on board a par- ticular vessel within a certain specified period after the sailing of the vessel, whether the goods shall then have been conveyed to their place of destination or not, or whether they shall ever be so conveyed or not, and to secure this arrangement the amount is made payable by the shipper, the sum stipulated to be paid is not freight, but a payment in lieu of freight. In this case there is no lien upon the goods to secure the payment, neither the con- signee nor his goods being liable for the payment of the sum stipulated to be paid, which is held to be not freight, but a re- {d) Lewis ■!). McKee, L. R. 4 Ex. 58. (/) Marquand v. Banner, 6 Ell. & (c) Howard v. Tucker, 1 B. & Ad. Bl. 24.';; j25 L. J. Q, B. 313; Kern v. 712; Kirchner «. Venus, 12 Moore, P. C. Deslandef, 10 C. B. N. s. 205; 30 L. J. 3^9. C. P. 297. 726 CHAP. II.] CARlilEES. *511 mimeration for receiving tlie goods, with a qualified contract for conveying them, and not a reward for actual conveyance, {g) But partieiS who have by special contract superseded the rights and obligations which the law attaches to freight in its legal sense may, if they think fit, create a lien on the goods for the performance of the agreement into which they have entered ; and they may do this either by express conditions contained in the contract itself, or by agreeing that, in case of failure of perform- ance of that agreement, the right of lien for what is due shall subsist as if there had been an agreement for freight ; and the usage of the place where the contract was made may be annexed to the contract so as to create a lien, provided both parties were cognizant of the usage at the time they made their con- tract. Qi) Payment of Demurrage on Charter-Parties and Bills of Lading. — Where the charter-party is silent as to the time to be occupied in the discharge, the contract implied by law is that each party will use reasonable diligence in performing that part of the delivery which, by the custom of the port, falls upon him ; and there is no implied contract by the sliipowuer to allow his vessel to be kept there the usual time, if, by reasonable diligence on the part of the merchant the cargo might be sooner taken away; and no implied contract by the merchant to take the cargo out within such usual time, if he could not by reasonable diligence do so. The contract implied is that each should use reasonable despatch in performing his part. Where, therefore, delay liap- pens without fault on either * side, the loss must remain [ * 511 ] where it falls, (t) The charterer usually covenants or promises to load or unload the vessel within a certain time, or, if he fails so to do, to pay so much per diem during the delay. This payment, as well as the delay itself, is called in mercantile and legal phraseology, demurrage. The charterer cannot escape from liability upon his express covenant or promise to pay demurrage by showing that the delay was occasioned by some unforeseen event not provided for by the contract, such as the (g) Howe. Kirchner, 11 Moore, P. C. (i) Ford v. Cotesworth, L. R. 4 Q. B. 25. 127; 5 Q, B. 544; 39 L. J. Q. B. 188; Qi) Kirchner v. Venus, 12 Moore, P. Cuningham v. Dunn, 3 C. P. D. 443, C. 398; Fisher v. Smith, 4 Ap. Cas. 1. C. A. 727 * 512 CONTRACTS FOR SERVICES. [BOOK II. delays of other consignees in unloading, (k) the crowded state of the docks, the delays of Custom House officers, or the inclemency of the weather, (l) or bad weather, (m) or even a permanent ob- stacle, (n) or the neglect of the holders of the bill of lading to present it and claim the goods, (o) But if the delay is occasioned by the wrongful and unauthorized interference of the shipowner himself with the unloading of the cargo, the detention is not then the detention of the charterer, and the shipowner cannot claim demurrage in respect thereof (p) When a port is named in the charter-party as the port to which the vessel is to proceed, the lay days do not commence upon tlie arrival of the vessel in the port, but upon her arrival at the usual place of loading in the port, not the actual berth at which she loads, but the dock or roadstead where loading usually takes place, (q) If when she arrives there the place is so crowded that she cannot load, the loss must fall on the charterer ; the shipowner has done all he was required to do when he has taken his vessel to the usual place of loading in the port, (r) and he is not bound to wait an unreasonable time till the port is cleared, (s) A stipulation that the vessel shall proceed to A, and there load a cargo " in the usual and customary manner," applies to the mode of loading, ^\'hether by a lighter or at the wharf, and not to the place to which the shipowner undertakes that the ship shall proceed, (t) Where a charter-party provided that the cargo should be " dis- charged with all despatch according to tlie custom of the port," and the custom was to unload by lighters in turn, and delay arose while waiting for the turn, it was held the jury [*512] were * rightly directed that if tlie defendants had used the existing means at the port with reasonable de- (k) Stvaker v. Kidd, 3 Q. B. D. 223; 265, C. A.; Dahl v. Kelson, 12 Ch. D. Porteus V. Watney, 3 Q. B. D. .'J34. 568; 6 Ap. Cas. 38. (0 Blight «). P.ige, 3 B. &P. 295, n. ; (r) Tapscott v. Balfour, L. R. 8 Barret v. Button, 4 Campb. 333. C. P. 46; 42 L. J. C. P. 16; Ashcroft r. (m) Thiis v. Byers, 1 Q. B. D. 244. Crow Colliery Co., L. 11. 9 Q. B. 540. (n) Dahl v. Nelson, 12 Ch. D. 568; (s) Dahl v. Nelson, 6 Ap. Cas. 38. 6 Ap. Cas. 38. (t) Tapscott v. Balfour, supra. See (o) Erichsen v. Barkworth, 3 H. & N. Kay v. Field, 8 Q. B. D. 594. The 894; 28 L. J. Ex. 95. mode of loadinft may he connected with (p) Benson v. Blunt, 1 Q. B. 870. the place of loading; Coverdale w. Grant, (?) Tapscott V. Balfour, infra .- see, 8 Q. B. D. 600. however, Davies v. McVeagh, 4 Ex. D. 728 CHAP. II.J CAKEIEKS. . * 512 spatch, according to the custom, the jury were to find for the defendants, (it) When neither the shipowner nor tlie cliarterer is to blame for delay, the number of days runs from the time when the ship is in a dischargeable state ; and if no period is mentioned, the cargo is to be discharged in a reasonable time, to commence from the time when the ship is in a state to begin delivering, (v) Where £5 per diem deumrrage was stipulated to be paid, " to reckon from the time of the vessel being ready to unload and in turn to deliver,'' it was held that the words " in turn to deliver " applied to the public rules and regulations of the port of discharge, and that the charterers were not liable for the payment of demurrage until their " turu to deliver " had come, in conformity with the regulations of the port, (x) If after the loading has been completed the vessel is detained by a sud- den frost, (y) or by foul weather and contrary winds, no right to demurrage arises by reason of such detention. (2) The days mentioned in the clause of demurrage are under- stood, it is said, by the custom of the port of London, to be working days, and do not, consequently, include Sundays, and Custom House holidays, (a) There does not, however, appear to be any general custom to this effect, (b) The lay days allowed are moreover to be reckoned from the time of the ship's arrival at the usual place of discharge, and not from her arrival at the entrance of the port, although for the purposes of navigation she may have discharged a portion of her cargo at the entrance of the port, (c) It is competent for the consignee to show that there is a custom at the port of unloading that the lay days commence at some particular period, (d) If the parties by mut- ual consent substitute a new port for the port mentioned in the (m) Postlethwaite u Freeland, 4 Ex. Where "despatch-money" was to be paid D. 155; 5 Ap. C'as. 599. on any time saved in loading, 10s. per [v) Brown v. Johnson, 1 Car. & hoar, and nine days were saved, it was Marsh. 440; 10 M. & W. 3-31. held that these days were twenty-fonr {x) Robertson!). Jackson, 2 C. B. 412; hours each, not twelve. Laing t!. Holl- 15 L. J. C. P. 28; Taylor v. Clay, 9 Q. way, 3 Q. B. D. 437. B. 713; Leidemann v. Schultz, 14 C. B. (b) Brown D.Johnson, 10 M.&W. 334. 51; 23 L. J. C. P. 17; but see Lawson (c) Brereton v. Chapman, 7 Bing. V. Burness, 1 H. & C. 396. 559; Kellv. Anderson, 10 M. & W. 498; (y) Pringleu. MoUett, 6 M. &.W. 83. Bastifell v. Lloyd, 1 H. & C. 388; 31 (z) Jamieson v. Laurie, 6 Bro. P. C. L. J. Ex. 413. 474. (("0 Norden Steamship Co. v. Demp- (a) Cochran v. Eetberg, 3 Esp. 121. sey, 1 C. P. D. 654. 729 * 513 CONTRACTS FOE SERVICES. [BOOK II. contract of affreightment, the freighter will be entitled to the lay days, and the shipowner to the demurrage, stipulated for by the original contract. («) In the case of demurrage, a fraction of a day counts as a day. (/) If a consignee accepts goods [*513] under a bill of lading, at the bottom of which * is a memorandum to the effect that the ship is to be cleared within a certain time, and that demurrage, at the rate of so much per diem, is to be paid after that day, he will be liable for the payment of such demurrage, and may be sued therefor by the master ; {g) but he is not responsible to the master for de- murrage if no such clause is contained in the bill of lading, (A) or if the delay is caused by the master's improperly refusing to deliver the whole cargo, (i) Where by the bill of lading the vessel is to be unloaded in her regular turn, the consignor is liable for her detention beyond her regular turn, although there is no express contract for demurrage in the bill of lading, (k) Where the phrase in the charter-party is general, viz., "the charterer's liability to cease when the cargo is shipped," this includes all liability as well past as future ; (/) but where the clause was that the liability should cease " as soon as the cargo is shipped, loading excepted," it was held that the charterer was liable for delay in loading, {m) Where the stipulation is that the ship is to be brought to a particular place, " or as near thereto as she may safely get," this refers to any permanent obstacle, as well as to anything endangering her safety, (w) It is not unusual for the charter-party to give the shipowner a lien on the cargo for demurrage, and to provide that the char- terer's responsibility is to cease on shipment of the cargo. Such (e) Jackson v. Galloway, 6 Sc. 792. (7^) Cawthi-on 'v. Trickett, 15 C. B. (/) Commercial Steamship Co. v. n. s. 754; 33 L. J. C. P. 182; and see Boulton, L. E. 10 Q. B. 346. Shadforth v. Gory, 32 L. J. Q. B. 379. {(j) .lessen v. Solly, 4 Taunt. 54; (I) Bannister v. Breslauer, infra; Stindtu Eoberts, 17 L. J. Q. B. 166; 12 Kisli i). Cory, L. E. 10 Q. B. 653; Jur. 518; Wegenc-r v. Smith, 15 C. B. French v. Gerljcr, 1 C. P. D. 737; 2 C. 285; 24 L. J. C. P. 25. P. D. 247, C. A. (h) Brouncker v. Scott, 4 Taunt. 1; (m) Lister t). Van Haansbergen, 1 Q. Smith V. Sieveking, 5 Ell. & Bl. 589; 24 B. ]». 269. L. J. (). B. 257; (Jhappel v. Comfort, («) Dahl v. Nelson, 12 Ch. D. 568; 10 0. B. N. s. 802; 31 L. J. C. P. 58. C. A. ; 6 Ap. Cas. 38. See Capper v. (i) Young V. Moeller, 5 Ell. & Bl. Wallace, 5 Q. B. D. 163. 762; s. (J. nom. Moller v. Young, 25 L. J. Q. B. 94. 730 CHAP. II.] CAERIERS. * 514 an agreement is, of course, binding, and if that is the intention of the parties as collected from the instrument, will relieve the charterer from responsibility for demurrage at tlie port of load- ing as well as at that of discharge, (o) But such a construction should not be adopted unless the intention of the parties is quite clear; for the safer and juster conclusion in the case of doubt is that it absolves the charterer, when once cargo of suffi- cient value is on board, from all liabilities, which but for it he might incur in respect of anything happening after the sailing of the ship, or, more properly speaking, after the bill of lading is given, as it were, to replace the charter-party, {p) And even where the charterer is * discharged, it does not [*514] necessarily follow that the responsibility is transferred to the holder of the bill of lading, (cj) Primage and Average. — The freighter whose merchandise has been conveyed to the port of destination is also liable for the payment of certain customary charges called primage and aver- age. The first is a small customary payment to the master for his trouble, and the second consists of several petty charges, such as towage, beaconage, pilotage, &c. (r) General Average and Contribution. ^ — By the ancient laws of 1 2 Pars. Gontr. (6th ed.) 323-332; Pars. Shipp. & Adm. c. 9; Dixon, Gen. Av.; Roberts, Adm. & Pr. c. 6; U. S. Dig. tit. Shipping, sect. 914; Abb. Nat. Dig. tit. Average ; also ib. tit. Shipping. (o) Bannister v. Breslauer, L. R. 2 C. Fry v. Chartered Bk. of India, L. R. 1 P. 497; Kish v. Cory, L. R. 10 Q. B. C. P. 689, not to make the holder of the 553; slnguinetti f. Pacific Steam Nav. bill of lading of a part of the cargo Co., 2 Q. B. D. 238. liable for the entire freight. In Wegner \p) Brett, J., Gray v. Carr, L. R. 6 v. Smith, 15 C. B. 285; 24 L. J. C. P. 25, Q. B. 522, 537; Oristoffersen v. Hansen, words making the goods "deliverable L. R. 7 Q. B. 569; Lockhart v. Falk, to order against payment of the agreed L. R. 10 Ex. 132. freight and other condiiiotis as per char- (?) An intention to charge the holder ter-party," were held to make the con- of the bill of lading with demurrage at signee liable for demurrage at the port the port of loading was held not to be of delivery; Kern v. Deslandes, 10 expressed in Smith v. Sieviking, 4 E. & C. B. N. s. 205; 30 L. J. C. P. 297; B. 945; 24 L. J. Q. B. 257, by the the words "paying freight for the words "paying for the said goods as per said goods as usiial," were held to mtro- charter-party." The words "paying duce a claim of lien from the charter- freight as per charter-party," were held party into the bill of lading; but this in Chappel v. Comfort, 10 C. B. N. s. case has been doubted; per Brett, J., 802; 31 L. J. C. P. 58, not to make the Gray v. Carr, L. R. 6 Q. B. 540. holder of the bill of lading liable for de- (r) Abbott, 404; Pothier ( Avaries), muiTage at the port of discharge; and in No. 147. * 515 CONTRACTS FOR SERVICES. [BOOK II. the Ehodians, it was provided that if several persons had laden goods on board a ship to be carried for hire, and the goods of ■ one of them were thrown overboard in a storm to lighten the vessel and save her from perishing, the loss incurred for the sake of all should be made good by the contribution of all. (s) This equitable rule of law was adopted by the Eomans, and has been introduced into the maritime code of Continental Europe. It is said to have been engrafted upon our own common law by the Normans, and has certainly existed as a custom amongst merchants in this country from a very early period. The obli- gation to contribute, which is deemed by the common law to be tacitly entered into by the shipowners and owners of the cargo, is called general or gross average ; and the parties subject thereto are bound to contribute ratably according to the value of their several proportions of the property saved. The law of contribu- tion is tlius explained by Domat in his Treatise on the Civil Law : — " When, in order to lighten a ship in peril of shipwreck, part of the cargo is cast into the sea, and the ship by that means is saved, this loss is common to all those who have anything to lose in that peril. Thus the master of the ship, all those whose merchandise or effects have been saved, and those whose goods have been thrown overboard, will each bear their share of the loss, in proportion to the share they had in the Avhole. [*515] If, for example, the ship and the whole * cargo were worth 100,000 crowns, and that which was cast over- board was worth 20,000 crowns, the loss being a fifth, each will contribute a fifth part of the value of what he has saved, which will make in all 16,000 crowns ; and by this contribution, those who lost the 20,000 crowns, in recovering 16,000 will remain losers only of a fifth part, like the rest." (t) Everything saved pays contribution according to its value; the shipowner contributes in proportion to the value of the ship and furniture, except the provisions of the passengers and crew, (u) and the passengers and owners of goods shipped on board in proportion to the value of the property they save, is) Dig. lib. 14, tit. 2, lex 1, De lege (t) Domat, Les Lois Civiles, liv. 2, Rhodia; Pothier, Traite des Ai-aries, tit. 9 sects. 2, 6. Partie 2, ed. Dupin, 371 ; Code de Com. («) Brown v. Stapyleton, 4 Bing. merce, liv. 2, tit. 11, Des Avaries. 119. 732 CHAP. II.J CARRIEES. * 516 excepting the clothes on their hacks, but not excepting their wearing apparel and jewels deposited on board, (x) The freight and earnings of the ship, after deducting the wages of the master and crew and other expenses of the voyage, likewise form the subject of contribution and general average ; and if a ship be chartered out and home for one entire and indivisible sum for the use of the ship out and home, the entire freight for the outward and homeward voyage must, when ultimately earned, contribute to the loss, whether the loss has occurred upon the outward or the homeward voyage, (y) Goods stowed upon the deck of the vessel, and thrown overboard during a storm, are excluded from the benefit of general average and contribution. Where a deck cargo was loaded on deck with the consent of the cargo-owner on a general ship, and there was no alleged custom bearing upon the case, (z) the other cargo owners were held not liable as for general average in respect of jettison of the deck cargo, (a) If goods are so loaded without the consent of the cargo-owner, the shipowner is himself liable, (b) and if it is agreed between the cargo-owner and the shipowner that a deck cargo shall be carried, and the shipowner and cargo-owner get the whole of the benefit from the jettison, it seems the ship- owner is liable, (c) To establish a claim for general average, it must be shown that the goods were thrown overboard in a moment of distress and danger with a view of preserving the ship and cargo; if they have been washed out of the ship by the violence of the waves, or have been damaged or destroyed by lightning or tem- pest, or have been unnecessarily cast overboard by the master or crew or passengers, the loss will not support a claim for general average. (fQ If the * masts and cables of [*516] the vessel have been cut away for the purpose of pre- (»•) Pothier, Avaries, art. 3; by the (a) Wright v. Mai-wood, 7 Q. B. D. civil law, wearing apparel was made to 62. contribute towards the general average; (S) lb.; this case practically over- Dig, lib. 14, tit. 2, lex 2, sect. 2. rules Milward v. Hibbert, 3 Q. B. 120. (y) Williams v. Lond. A. Co., 1 M. (c) lb.; Johnson v. Chapman, 19 & S. 325. C. B. N. s. 563. (z) See Miller v. Titheringlon, 30 L. (d) Mouse's case, 12 Co. 63; Dobson J. Ex. 217; 31 L. J. Ex. 363. ■!'. Wilson, 3 Campb. 486; Pothier, Part 2, sect. 2, art. 1. 733 * 516 CONTRACTS FOR SERVICES. [BOOK II. venting shipwreck, the owners of the cargo must contribute towards the loss of the shipowner ; but if they are blown away or injured in consequence of the necessity of carrying a great and unusual press of canvas to escape a threatening danger, or if the ship was not seaworthy at the commencement of the voy- age, and the loss was occasioned by reason of such vmseaworthi- ness, the loss is not the subject of contribution and general aver- age, (e) If a mast is cut away witli a view to saving the whole adventure, but at the time when it is cut away it is certain to be lost in any event, then there is no " sacrifice " of the mast, and therefore no claim for general average. (/) If a ship acci- dentally runs foul of another ship in a fog or storm, and the master is compelled to cut away his rigging in order to preserve the ship and cargo, and is obliged to put into port to repair and renew that which has been sacrificed, the expense of re-landing and warehousing the cargo, of pilotage, and of the repairs, so far as they are absolutely necessary to enable the cargo to be for- warded, form the subject of general average, (g) In order to give rise to a charge as general average, it is essential that there should be a voluntary sacrifice to preserve tnore subjects than one, exposed to a common jeopardy ; but an extraordinary expenditure incurred for that piurpose is as much a sacrifice as if, instead of money being expended for the purpose, money worth were thrown away. It is immaterial wliether the ship- owner .sacrifices a cable or an anchor to get the ship off a shoal, or pays the worth of it to hire those extra services which get her off. (7;,) If part of the cargo has been taken out and put into lighters, to enable a stranded vessel to be got afloat and sent into port for repairs, the whole expense of the operation, which is for the common benefit of ship, goods, and freight, forms (e) Birklej' II. Presgrave, 1 East, 220; 4S2, qualified by Hallett v. "Wigram, 9 Covington v. Roberts, 5 B. & P. 379; C. B. 601; 19 L. J. C. P. 288; Hall v. Power V. Whitmore, 4 M. & S. 149; Janson, 4 Ell. & Bl. 508; Harrison v. Schlo^s i: Heriott, 14 C. B. N. s. 59; 32 Bank of Australasia,L. B. 7 Ex. 39; 41 L. J. C. P. 211; Dig. lib. 14, tit. 2, lex L. J. Ex. 36; Attwood v. Seller, 5 Q. B. 3, lex 5; Domat, lir. 2, tit. 19, sect. 2, D. 286, C. A. 11. (h) Per Blackburn, J., Kemp v, Hal- (/) Shepherd v. Kottgen, 2 C. P. D. liday, 6 B. & S. 723; 34 L. J. Q. B. 585, C. A. 233. (?) Plummer v. 'Wildman, 3 M. k S. 734 CHAP. II.] CARRIERS. * 517 the subject of general average ; (i) but not, as a general rule, expenses incurred after the cargo has been safely discharged and warehoused for the purpose of saving the ship alone, (k) So long as the expenditure by the shipowner is merely such as he should incur in the fulfilment of his ordinary duty as shipowner, it can- not be general average ; but the expenditure in raising a submerged * vessel with cargo is extraordinary expen- [*517] diture, and is, if incurred to save the cargo as well as the ship (which prima facie is the object of such an expen- diture), chargeable against all the subjects in jeopardy saved by this expenditure. (I) So also the expense of hiring extra hands to pump, (m) and the burning of spars and cargo as fuel for the engine to work the pump, (n) and throwing water on the cargo in case of fire, (nn) have been held to be general average. The American courts have enlarged the limit of general aver- age, and have included within description of extraordinary ex- penses incurred for the common benefit, the expenses of repairs rendered necessary by extraordinary perils, and made at an inter- mediate port for the purpose of prosecuting the voyage, (o) If it is necessary to lighten the ship to enable her to get into a port of safety, and a portion of the cargo is taken out for the purpose and put into lighters, and the lighters perish ere they reach the shore, the loss will be common, and the owners of the residue of the cargo must contribute thereto, as it was for the general benefit that the discharge was made. But if the ship is cast away and the lighter gets safe to port, there is then, it is said, no contribution, but each must bear his own loss. If a ship that has been saved from one danger of shipwreck by throwing some of the goods overboard is afterward sunk in another place and a portion of the cargo is recovered from the wreck, the own- ers of the cargo so recovered must contribute to make up the loss of those whose goods were thrown overboard for the purpose (i) Moran v. Jones, 7 Ell. & Bl. 633; (m) WilsoTi v. Bank of Victoria, L. 26 L. J. Q. B. 187. R. 2 Q. B. 203. (fc) Job V. Langton, 6 Ell. &B1. 792; (n) Robinson «. Price, 2 Q.B. D. 295. 26 L. J. Q. B. 97; Walthew v. Mavro- {nn) WhUecross Wire Co. v. Savill, jani, L. R. 5 Ex. 116; 39 L. J. Ex. 81. 8 Q. B. D. 653. (I) Per Blackburn, J., Kempi). Halli- (o) Bovill, C. J., AValthew v. Mavro- day, 6 B. & S. 723; 34 L. J. Q. B. 233. jani, sii2}m. 735 * 518 CONTKACTS FOE SEKVICES. [BOOK 11. of avoiding the first peril, as tlie goods recovered miglit then have perished but for the sacrifice of tlae things thrown over- board to escape it. But if he whose goods were thrown over- board at first happens afterward to recover them, he shall not contribute towards the subsequent loss, as that loss has in no- wise contributed to the safety of the goods so recovered. If by reason of a jettison of goods some portions of the residue of the cargo have been exposed and injured, this injury must, by the civil law, be made good by contribution. The owner of the dam- aged goods himself contributes towards the total loss according to the actual value of such goods after the injury, and is then entitled to contribution in respect of his own partial loss, {p) Salvage paid to recap tors, money or goods given as a composi- tion to pirates to save the rest, and expenses incurred in reclaim- ing the ship or defending a suit in a foreign court of [ *518 ] * admiralty, and obtaining her discharge from an unjust capture or detention, are all the proper subjects of gen- eral contribution, {q) It has been held that the expenditure of ammunition in resisting capture by a privateer, the damage done to the ship in the combat, and the expense of curing the wounded, are not the subject of contribution and general aver- age. The correctness of this decision, however, may be doubted, opposed as it is to the opinions of some of the most eminent writers on maritime law, and to the acknowledged principle of contribution, (r) " A practice formerly prevailed in this country to value the goods at their invoice price or prime cost if the loss happened before half the voyage was performed ; but if it hap- pened afterward, then to ^'alue the goods at the clear price which they would have fetched at the place of destination. The last valuation is now adopted in all cases where the average is ad- justed after the ship's arrival at the place of destination. But if the ship is compelled to return to its port of lading, and the aver- age is immediately adjusted, the goods only contribute according (p) Dig. lib. 14, tit. 2, lex 4, sects, tribntioni savciatur, quod pro omnibus 1, 2, 7; Domat, liv. 2, tit. 9, sect. 14 datum est." {Avaries), No. 145; Pothier, Des Avar- (r) Taylor v. Curtis, 6 Taunt. 608; ies, art. 4. ib. 638-643; Phillips on Insurance, 337; {q) Marshall on Insurance, 4th ed., by Benecke, 280; Pothier (^mms), sect. Mr. Justice Shee, p. 425, the leading 2, No. 144. principle is thus stated: "Omnium con- 736 CHAP. II.J CARRIERS. * 519 to the invoice price," (s) or even less, if in all probability they would have arrived in a damaged state ; the general rule beino- that the value of goods jettisoned is to be taken to be the sum which it may fairly be assumed they would have been worth to the owner at the port of adjustment, (i) As soon as the averao-e has been calculated and the exact amount of contribution ascer- tained, an action may be brought for its recovery, (u) Where . there has been a general average loss, the shipowner must take such steps as are necessary upon his part to procure an adjustment of the general average and secure its payment, (x) Transfer of Bills of Lading.^ — The contract evidenced by a bUl of lading is transferred by the indorsement and delivery of the instrument to the indorsee, so as to enable the latter to maintain an action or be sued upon it. (y) If the consignor \inder a bill of lading making the goods deliverable to order or assigns, indorses the bill in blank and deposits it as a security for an advance of money, and on re-payment of the advance the bill is re-indorsed and re-delivered to him, he is remit- ted to all his * rights under the original contract as [*519] against the shipowners, and may sue them for a breach, whether occurring before or after the re-indorsement. (2) Damages for Breach of Charter-parties. — The measure . of damages for the breach of the ordinary contract or covenant in a charter-party to procure and ship a cargo and pay freight, (ante, p. *482) is to be ascertained by calculating the freight to be earned, and deducting the expense which the shipowner would have been put to, but did not incur, in earning it, and also what the ship earned (if anything) during the period which 1 2 Dan. Negot. Inst. (3d ed. 1882), c. 54; Abb. Nat. Dig. tit. Bills of Lading; Shaw V. Railroad Co., 101 U. S. 557; Robinson v. Memphis, &c. R. R. Co., 9 Fed. Reporter, 129; The L. J. Farwell, 8 Biss. 61; and see ante *p. 482, American note 2. (s) Abbott, ContrihuHmi. cachi i>. Anglo-Egyptian Navigation Co. , (1!) Fletcher u. Alexander, L. R. 3 C. L. R. 3 C. P. 190; Smurthwaite u. P. 375; 37 L. J. C. P. 193. Wilkins, 13 C. B. n. a. 842; 31 L. J. (u) Birkley D. Presgrare, 1 East, 220. C. P. 214; The Figlia Maggiore, L. R. 2 See the form of declaration, Schloss v. A. & E. 106; 37 L. J. Adm. 52; The Heriot, 14 C. B. N. s. 59; 32 L. J. C. P. Freedom, L. R. 3 P. C. 394; 24 Vict. c. 214. 10, sect. 6. (x) Crooks V. AFan, 5 Q. B. D. 38. (2) Short v. Simpson, L. R. 1 C. P. (1/) 18 & 19 Vict. c. Ill; see Dra- 248; 35 L. J. C. P. 147. VOL. 1. 47 737 * 519 CONTRACTS FOE SERVICES. [BOOK II. would have been occupied in performing the voyage if the char- ter-party had been fulfilled, (a) If subsequently to the breach of contract the shipmaster has been offered a cargo and has re- fused it, or has neglected an opportunity of receiving cargo and earning freight, the measure of damages will be the amount of freight agreed to be paid, minus what the shipma-ster might have earned if he had thought fit. (6) When goods shipped on board have been sold at an intermediate port to defray expenses neces- sarily incurred in repairing the vessel, the shipper is not en- titled to claim the price they might have realized at the port of delivery, unless the ship and cargo arrive there in safety, (c) Restrictions on the Carriage of Dangerous Goods.' — By the 36 & 37 Vict. c. 85, sect. 25, the master or owner of any ves- sel may refuse to take on board any package or parcel which he suspects to contain goods of a dangerous nature, and may require it to be opened to ascertain the fact. By sect. 26, where any dangerous goods, (d) or any goods which in the judgment of the master or owner of the vessel are of a dangerous nature, have been sent or brought aboard any vessel without being marked or without notice being given as required by the act, (e) the master or owner of the vessel may cause such goods to be thrown overboard, together with any package or receptacle in which they are contained ; and neither the master nor the owner of the vessel will be subject to any liability in respect of such throwing overboard. Carriage of Passengers and Merchandise by Land by Parties not being Common Carriers.^ — Injuries to Passengers and Goods. ' U. S. Rev. Stat., sects. 4278, 4-279, 4288, 4422, 4424, 4472, 4475, 4476, 5353- 5355; Boston, &c. By. Co. v. Sbanly, 107 Mas.s. 568; Furth i). Forster, 7 Eobt. 484 ; Wilkie v. Bolster, 3 E. D. Smith, 327 ; Barney v. Burstenbinder, 7 Lans. 210 ; The Nitro-fUyeerine Case, 15 Wall. 524 ; see ante, *p. 419, American note. 2 Upon transportation by railroad, see Pierce, Railroads (2J ed. 1881); Red- (a) Smith v. M'Guire, 3 H. & N. other goods of a dangerous nature, sect. 567; 27 L. J. Ex. 465; Wilson v. Hicks, 23. See also 38 Vict. c. 17, post, p. 527. 26 ib. 242. (c) By sect. 23, the nature of the (b) Harries v. Edmonds, 1 C. & K. goods must be marked on the outside of 6S6. the package, and written notice of their (c) Atkinson v. Stephens, 21 L. J. nature and of the name and address of Ex. 333. the sender or carrier must be given at or (d) That is, aquafortis, vitriol, naph- before the time of sending the same to tha, benzine, gunpowder, lucifer match- be shipped, or taking the same on board es, nitro-glycerine, petroleum, or any the vessel. 738 CHAP. II.] CARRIERS. * 520 — All persons who undertake the work of carrying pas- sengers by * land for hire impliedly warrant their vehi- [ * 520 ] cles, horses, harness, and equipments to be road worthy, in good travelling order, and reasonably secure and sufficient in strength for the accomplishment of the journey, so far as that condition of things can be secured by the exercise of skill and foresight; but the carrier does not warrant that they shall be perfect for their purpose ; and, therefore, he is not responsible for a defect in the vehicle, the existence of which no skill, care, or foresight could have detected, (/) but he ought reasonably to examine the vehicle. (. Adams Exp. Co., ib. 242; and on the effect of "value asked, not given," and other limitations in express receipts, Mather v. American Exp. Co., 9 Biss. 293; Muser v. Holland, supra. Upon other classes of land carriers, see Angell, Carriers (5th ed. 1877); Red- field, Carriers; Lawson, Contracts of Carriers; HoUister v. Nowlen, 19 Wend. 234, 32 Am. Dec. 455, and note by A. C. Freeman, ib. 468; Cole v. Goodwin, 32 Am. Dec. 470, and note, ib. 495. (/) Bums V. Cork & Bandon Ry. Co., Francis v. Cockerell, L. R. 5 Q. B. 184; 13 Ir. C. L. E. 546; Christie v. Griggs, ib. 501. An overloaded coach is not 2 Campb. 81; Sharp v. Grey, 9 Bing. roadworthy. Israel v. Clarke, 4 Esp. 457; 2 M. & Sc. 620; Readhead v. The 259; Aston v. Heaven, 2 Esp. 535. Midland Ry. Co., L. R. i Q. B. 379; (g) Richardson v. G. E. Ry. Co., L. 739 * 521 CONTKACTS FOR SERVICES. [BOOK II. skill, the carrier or coach-proprietor impliedly undertakes, if he drives himself, that he is possessed of, and wiU exercise, com- petent skill and knowledge of dri\'ing. If, on the other hand, he accomplishes the work through the medium of inferior agents and servants, he impliedly undertakes to provide fit and proper persons to execute the office. If the driver overloads the car- riage, or drives with immoderate speed, or with defective reins, or with reins so loose that he cannot readily command his hoi'ses, or if he passes unnecessarily along unsafe parts of the road, or through narrow gateways or dangerous passages, or takes the wrong side of the road, and a collision occurs, the proprietor of the carriage will be answerable for injuries sustained by the pas- sengers, (h) And if from the negligence or recklessness of the driver, or defects in the carriage, harness, or equipments, the passenger is placed in so perilous a situation as to render it ad- visable for him to leap to the ground to avoid a greater peril rea- sonably to be apprehended, and he sustains an injury in so doing, the coach proprietor is responsible. {%) In determining the ques- tion of negligence in cases of collision, the law or custom of the road as to passing vehicles is to be taken into consideration ; but it does not follow that a person wjio neglects that custom and is on the wrong side of the road when a collision takes place, is necessarily guilty of negligence. " Circumstances may frequently arise where a deviation from what is called the law of the road would not only be justifiable, but absolutely necessary." (k) Carriers of passengers by railway contract that all persons connected with the carrying and with the means and appliances of the carrying, such as the carriages, the road or sig- [ *521 ] nailing, shall use * care and diligence ; but they do not contract that other railway companies who may be en- titled to use the railway shall not be guilty of negligence in the management of their trains. {I) Every carrier of passengers for hire, whether he be or be not a common carrier, is bound to exercise the greatest care and fore- R. IOC. P. 486, reversed on the find- (7.) "Waydev. Lady Carr, 2D.& R. 256. ings on appeal, 1 C. P. D. 342. [1) Wright «;. Midland Ry. Co., L. R. (7i) Aston V. Heaven, 2 Esp. .ISS ; 8 Ex. 137; 42 L. J. Ex. 89. As to this, Bremner ■!). Williams, 1 C. & P. 414. see post, p. *663. (0 Jones 0. Boyce, 1 Stark. 493. 740 CHAP. II.] CARRIERS. * 521 thought for securing the safety of his passengers, and is answer- able for the smallest negligence on his own part or on the part of his servants and agents, (m) but not for unforeseen accidents and misfortunes, which care and vigilance could not have pro- vided against or prevented. He " does not warrant the absolute safety of his passengers. His undertaking as to them goes no farther than this, that as far as human care and foresight can go, he will provide for their safety." "When everytliing has been done that human prudence can suggest, an accident may happen. The lights may in a dark night be obscured by fog, the horses frightened, or the coachman may be deceived by a sudden alteration in the position of objects near the road by which he had been used to be directed in former journeys ; and if, having exerted proper skill and care, he from accident gets off the road, the proprietors are not answerable for what happens from his doing so." But the breaking down or over- turning of a coach is, prima facie proof of negligence on the part of the driver, and he must rebut this presumption, if it be unfounded, by showing that " the damage arose from what the law considers a mere accident." (w.) When the carriage is by railway, the railway company is bound to keep the railway itself in good travelling order and fit for use, and to provide roadworthy engines and carriages, skilful drivers and engineers, and all things necessary for the safe conveyance of such pas- sengers ; and by the 31. & 32 Vict. c. 119, sect. 22, to provide in certain cases for means of communication between the pas- sengers and the guard. But the company is not bound, at its peril, to provide a roadworthy carriage, and will not be respon- sible to a passenger if the defect in the carriage is such that it could neither be guarded against in the process of construction, nor discovered by subsequent examination, (o) If the driver of a railway-engine drives at a dangerous speed, or from negligence or unskilfulness causes the train to be thrown off the rails, or to come into collision with another train, the (m) Jackson v. Tollett, 2 Stark. 38; & So. 620; 9 Bing. 460; Harris v. Cos- Dudley V. Smith, 1 Campb. 169. tar, 1 C. & P. 637. (n) Crofts V. "VVaterhouse, 11 Moore, (o) Readhead v. Midland Ry. Co., L. 137; 3 Bing. 321; Sharp -e. Grey, 2 M. R. 2 Q. B. «2; s. 0. (Exch. Ch.), ib. 4 Q. B. 379. 741 * 522 CONTRACTS FOR SERVICES. [BOOK II. railway company is responsible for all damages and [*522] injuries that may have *been sustained by the pas- sengers. (^) But if a railway-train runs off the line in consequence of the wilful and malicious act of a stranger who has placed a stone on the railway, then, as there is no negligence on the part of the railway company, they are not responsible for the consequences, {q) A railway company will be responsible for an injury sustained by a child between the ages of three and twelve, travelling with its mother, although no separate fare was paid for the child, at all events in the absence of fraud on the part of the mother, (r) and the company cannot shield itself under the contract with the mother, (s) The contract seems to be made by the invitation to take the seat in the train and the acceptance of it, and it is im- material whether the traveller himself took a ticket or paid the fare, {t) But where a servant has taken a ticket for himself, the master cannot sue, because the tort arises out of a contract to which the master is not a party, and there is no duty towards the master, (m) It seems, however, that where the servant has taken a ticket from one company and has been injured by the negligence of another, the master may sue that company with whom neither has contracted, {x) These cases do not appear to be satisfactory ; but it seems that, though generally speaking an action against a railway company for a tort in form is substan- tially for a breach of contract, where there is a contract express or implied between the parties, yet there is, beyond the contract, a duty which the law imposes upon all, namely to do no act to injure another, {z) When the very Occurrence of a Railway Accident is prima facie Proof of Negligence. — Wlien both the railway itself and the carriages in which the passengers are conveyed are under (p) Collett V. Lond. & N. W. Ry. C. B. 655 ; Austin v. G. W. Ry. Co., ('()., 16 Q. B. 984; Skinner v. Lond. Br. supra. &c. Ry. Co., 5 Exch. 787. (jj) Alton v. Midland Ey. Co., 19 C. (?) Latch V. Rumner Ry. Co., 27 Law B. n. s. 213; 3i L. J. C. P. 292. J. Exch. 155. (x) Berringer v. Gt. East. Ry. Co., (r) Austin v. Gt. West. Ry. Co., L. 48 L. J. C. P. 400, pn- Lopes, J." R. 2 Q. B. 442. (s) Fleming v. M. S. & L. Ry. Co., (s) s- 0. 4 Q. B. D. 81 ; FouUses v. Met. Dist. (t) Marshall v. Y. & N. Ry. Co., 11 Ry. Co., i C. P. D. 267; 5 C. P. D. 157. 742 CHAP. II.] CARRIERS. * 523 the exclusive control of the compauy carrying the passengers, the very fact of a train's running off the line has been held to be prima facie proof of negligence on the part of such company or its officers, and throws upon them the burthen of explaining how it happened, and of showing that it occurred without any fault or neglect of duty on their part, (a) And it is not sufficient to show that other companies had running powers over. their line, without * showing affirmatively that it was [*523] through the negligence of such other companies that the accident occurred, (h) But if the accident is prima facie caused by the negligence of some third person for whom the defendants are not responsible, e. g. a contractor engaged in pla- cing iron girders over the defendant's line for some third person, it must be shown that the accident resulted from, or might not have occurred but for the defendant's omitting to take some precaution usually adopted in such cases, (c) If it appears that the train went off the rails when travelling at a moderate speed, and that the wheels of the carriages and engine were properly constructed, and the railway itself was properly made and in good order, and that the departure of the engine and carriages from the rails might have been occasioned by the ma- licious trespass of a stranger {ante, p. * 522), there will be noth- ing to establish even a. prima faci^ case of negligence against the company, (d) But if the railway bridges or viaducts have not been properly constructed, or have not been carefully maintained and repaired, so as to enable them to resist the violence of storms and floods which may be expected occasionally to occur, and injuries are thereby caused to passengers, («) the railway com- pany will be responsible in damages, although they may have employed competent engineers and workmen, and have used the best materials in the work. (/) {a) Carpue v. Lond. & Br. Ry. Co., (o) Daniel i;. Metropolitan Ey. , L. R. 5 Q. B. 751; Latch v. Rumner Ry. Co., 3 C. P. 216; 3 ib. 591; 5 Engl. & Jr. supra; Dawson v. Manch. &c. Ey. App. 45. Co., 5 Law T. R, n. s. 682; see Scott «. \d) Bird v. Gt. Northern Ry. Co., 28 Lond. Dock Co., 34 Law J. Exch. 17; Law J. Exoh. 3. ib. 220; as to interrogatories in cases of (e) Gt. West. &c. of Canada v. Faw- coUision, see Beckervaise v. Gt. West, cett, 1 Moore's P. C. N. s. 101. Ry., L. R. 6 C. P. 36. (/) Grote d. Chester & Holyhead Ry. (b) Ayles o. South-East. Ey., L. E. Co., 2 Exch. 255. 3 Exch. 146. 743 *524 CONTKACTS FOR SEKVICES. [BpOK II. The 8 Vict. c. 20, sect. 68, imposes no duty on a railway com- pany towards their passengers to keep up fences so as to prevent cattle straying from adjoining lands on to the line. Neither are the company bound, at common law, to maintain fences sufficient to keep cattle off the line under all circumstances-; but they are bound to use every reasonable care to prevent them straying on the line, {g) Every person who receives goods to be carried from one place to another is bound to provide tarpaulins and proper " covering to protect the goods from injury by rain." (A) Loss of Goods or Money by the "Way. — A person who receives things to be carried by him for hire to a certain destination can- not set up a mere loss of them by the way as an answer to an action for the non-delivery of them according to his [ * 524] contract {ante, * p. * 494). Where the plaintiff delivered to the defendant £Z to be carried to Southwark, for reasonable hire and reward, it was held that the law would imply a promise from the defendant "safely to convey" the money, although he was not a common carrier, and although no sum certain had been agreed to be paid him as the price of the car- riage. {€) And where a traveller hired a cab for the conveyance of himself and his luggage to a railway station, and the luggage was placed on the outside of the cab, it was held that the law would imply from the acceptance of the luggage by the cabman to be carried, together with the passenger, for hire, a promise from him " safely and securely " to carry it, and that he was responsible for the loss of a portion of it by the way. (^■) This promise to carry safely which the law implies from all persons who undertake the carriage of goods for hire, is not understood to mean that the goods shall be carried and delivered safe at all events, but that they shall be kept safe from all such hazards and contingencies as might have been foreseen and guarded against by the exercise of vigilance or skill. The contract is " a contract (g) Buxton*. North-EasfernRy. Co., (h) Webb v. Page, 6 Sc. N. R. 957; L. R. 3 Q. B. 549. They are bound to 6 M. & Gr. 204; Walker v. Jackson, 10 fence for the benefit of the occupier, M. & W. 168. so as to prevent his cattle from stray- (i) Rogers v. Head, Cro. Jac. 262; iiig, even although the owner of the Matthews v. Hopping, 1 Keb. 852. land has agreed to take money in lieu (k) Ross v. Hill, 2 C. B. 877; 15 L. of fencing. Corry v. G. W. Ry.," 7 Q. B. J. C. P. 182. D. 322. 744 CHAP. II.] CAEEIERS. * 525 to carry safely and securely as far as regards the neglect of the carrier himself and his servants, but not to insure the safety of the goods;" and the carrier therefore would not be liable for losses by robbers, or any taking by force ; but he is pri7na facie responsible for a secret theft of them, and can only discharge himself from liability by proving his own care and watchfulness and blamelessness in the matter (ante, p. * 495). Where the defendant received eleven boxes of gold dust, under a special contract to carry them and deliver them at the Bank of England, " robbers and dangers of the road excepted," and one of the boxes was secretly stolen, it was held that the defendant was responsible for the loss ; that a secret theft or pilfering was not within the exception as to robbers, nor was it a danger of the road within the meaning of the contract. (I) If the owner accompanies the goods to take care of them, and loses them him- self, the carrier is not responsible for the loss. (?n) Who is to be deemed a Common Carrier.^ — Every person who plies with a carriage by land, or a boat or vessel by water, between different places, and professes openly to carry passengers and goods for hire, is a common carrier. Such are railway com- panies, who profess to carry passengers, parcels, and merchandise, stage-coach and stage-wagon proprietors, lightermen, hoymen, barge-owners, * canal boatmen, and the owners *[*525] and masters of ships and steamboats employed as general ships trading regularly from port to port for the trans- portation of all persons offering themselves or their goods to be conveyed for hire to the port of destination, (n) The owner of a cart or carriage who does not ply regularly for hire to a par- ticular destination, but merely lets out a private carriage, with horses and driver, by the hour, day, or job, to proceed to any destination orde]'ed by the hirer, is not a common carrier. A London cab-driver or hackney coachman, for example, is not a Log, &c. Co., 46 Mich. 38; The James Jackson, 9 Fed. Reporter, 614. (0 De Rothschild v. R. M. St. P. (n) Lovett ■«. Hobbs, 2 Show. 127; Co., 7 Exch. 734; 21 L. J. Ex. 273. Robinson v. Dunmore, 2 B. & P. 416; ())j) Erind v. Dale, 8 C. & P. 209, Laveronin. Dniry, 8 Exch. 166; Crouch 211 ; 2 M. & Rob. 80; see also cases as to v. Lond. & North-West. Ry. Co., 23 L. passengers' luggage, post, p. * 544. J. C. P. 73. 745 *525 CONTRACTS FOE SERVICES. [BOOK II. common carrier ; (o) nor is a furniture-remover ; (po) but a barge- owner is, although he does not ply between any fixed termini, and only lets his barges for a single voyage to one person at a time, if he lets out his vessels for the conveyance of the goods of any person who applies to him. (^p) Eailway companies are, apart from statute law or special contract, common carriers, and the Eailway Clauses Act, 1845, {q) provides that they shall not be liable to any greater extent than common carriers ; but their rights and liabilities are further regulated and limited, as we shall see, both by statute and by special contracts. It is the duty of all who hold themselves out to the world as common carriers to carry, for every person who tenders them the proper charge, all goods which they have convenience for carrying, and in respect of which they hold themseh'es out as carriers, without subjecting the person tendering the goods to any unreasonable or unusual conditions, {r) By many of the railway acts it is ex- pressly enacted that railway companies shall act as common carriers, that they shall convey passengers and goods by locomo- tive engines, and that they shall provide for all persons conveying and sending goods by their railway every reasonable convenience and facility for the loading and unloading of goods, (s) Duties of the Common Carrier.^ — Every common carrier is bound to accept and carry all such things as he publicly pro- ^ Common carrier nmst carry impartially, but cannot be compelled to do so by mandamus; the remedy is by action for damages. People v. New York Ey. Co., 12 Cent. L. J. 108, and note by J. D. Lawson, ib. 110; Graham v. Chicago, &c. Ey. Co., 53 Wis. 473. Eespecting obligation to carry passengers impartially, see as to colored persons, Railroad Co. v. Brown, 17 Wall. 445; U. S. Eev. Stat, sects. 1977, 1978 ; Act of March 1, 1875, c. 114, 18 Stat, at L. 336 ; Hall v. De Cuir, 95 U. S. 485 ; Brown V. Memphis, &c. II. E. Co., 7 Fed. Reporter, 51, 4 ib. 37; Gray v. Cincinnati Southern Ey. Co., 11 Fed. Reporter, 683; and as to intoxicated or disorderly per- sons, gamblers, persons diseased, &c., see Thurston v. Union Pacific E. R. Co., 4 Dill. 321; Hendricks v. Si.xth Ave. E. E. Co., 44 N. Y. Superior Ct. 8; Eailway Co. u. Valleley, 32 Ohio St. 345 ; Philadelphia E. E. Co. v. Larkin, 47 Md. 155; (o) Brind V. Dale, 8 C. & P. 207; (q) Post, p. Ross V. Hill, 2 C. B. 887; 15 Law J. C. (r) Garton v. Brist. & Ex. Ey. Co., P. 182. 1 B. & S. 162; 30 L. J. Q. B. 294. (od) Scaife v. Faixant, jyost, p. *540. (.•!) Pegler v. Monm. Ey. &c. Co., 6 (p) Liver Alkali Co. v. Johnson, L. H. & N. 644; 30 L. J. Ex. 249. E. 9 Ex. 338; 43 L. J. Ex. 216. 746 CHAP. II.] CARRIERS. * 526 fesses to carry, for all persons who are ready and willing to pay him his customary hire, provided he has room in his cart or car- riage for their conveyance, and has declared his intention to set out on his accustomed journey, (t) He is bound to carry them to and from the places to which he professes to carry, although one of those places may be without the realm ; (w) for whenever a man * undertakes the public office or pro- [*526] fession of a common carrier of goods, he undertakes a public trust for the benefit of the rest of his fellow-subjects, and is bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. (x) A carrier is not bound to carry goods by the shortest route, but only by the route by which he usually carries them, and which he professes to go. (3/) If he journeys by a particular roundabout road between one place and another, he is not bound to carry by a shorter route ; but he is bound to use reasonable despatch, and to deliver within a reasonable time. («) If he limits his enterprise and business to the carriage of par- ticular classes of merchandise or chattels, he can only be com- pelled to carry the things he publicly professes to carry and is in the habit of carrying. If the carriage of certain commodities is attended with inconvenience or some peculiar risk, he may refuse to receive and carry such articles as a common carrier, {a) but may nevertheless accept and carry them under a special con- Pittsburg, &c. E. R. Co. v. Vandyne, 57 Ind. 576; Milliman v. New York Cen- tral, &c. R. E. Co., 66 N. Y. 642; The Hammonia, 10 Ben. 512. Unusual accumulation of freight waiting to he forwarded does not excuse delay; see Keeter v. Wilmington, &c. E. E. Co., 86 N. C. 346; also Harrison v. Missouri Pacilie Ry. Co., 74 Mo. 364. Delay or loss caused by interference of mohs. Pittshurg, &c. Ey. Co. v. Hollo- well, 65 Ind. 188 ; Hall v. Pennsylvania E. R. Co., 19 Am. L. Beg. N. s. 250, 1 Fed. Reporter, 226; Wertheimer v. Pennsylvania E. E. Co., 1 Fed. Eeporter, 232, 17 Blatchf. 421; Pittsburg, &c. Ey. Co. v. Hazen, 84 111. 36. (t) Bac. Abr. Carriers (B); Pickford (s) Hales «. Lond. & N. W. Ry. Co., V. Grand Junction Ry. Co., 8M. & W. 4 B. & S. 66; 32 L. J. Q. B. 292; In re 372. Oxlade 11. The North-Ea.stern Ry. Co., (u) Crouch V. Lond & North- West. 15 C. B. N.s. 680. Ry. Co., 14 C. B. 290; 23 Law J.C. P. (a) Johnson «. Mid. Ry. Co., 4Exch. 73. 371; McManus v. Lane. & York. Ey. (x) Keilwey, 50, pi. 4. Co., 4 H. & N. 327; 28 L. J. Ex. 353. (y) Per Willes, J., Myei-s v. Lond. & South-West. Ey., L. E. 5 C. P. 3. 747 * 527 CONTEACTS FOE SEEVICES. [BOOK II. tract, throwing the risk of damage to them from ordinary acci- dents during the transit upon the owner or the consignor, (b) In tlie absence of a contract to deliver at a particular time, the duty of a common carrier is to deliver at a reasonable time, looking at all the circumstances of the case ; and since his first duty is to carry safely, he is justified in incurring delay, if delay is necessary to secure the safe carriage, (c) He is not responsible for the consequences of delay arising from causes beyond his con- trol. Where, therefore, the defendants, a railway company, were prevented by an unavoidable obstruction on their line from carrying the plaintiff's goods within the usual time, and the obstruction was caused by an accident resulting solely from the negligence of another company, who had, under an agreement with the defendants, sanctioned by act of parliament, running powers over their line, it was held that the defendants were not liable to the plaintiff for damage to his goods caused by the delay, (d) As regards dogs and live animals, if the carrier does not by his public profession and practice undertake to carry [*527] them, he * may decline to receive and carry them ex- cept upon certain special conditions, and under a special contract regulating and defining the nature and extent of his liability, (e) But in the case of a railway or canal company, the conditions or special contract must be just and reasonable, must not exempt the company from liability for their own neglect or default, and must be in writing signed by the con- signor or his agent. (/) Where carriers by sea give public notice that they receive goods for shipment on the condition and agreement only of the ship sailing under a bill of lading in the form ordinarily adopted, they are not bound to receive and carry otherwise than in accordance with their published terms, (g) {b) Peek v. North Staff. liy. Co., 32 {d) T.iylor u. Great Northern Ey. L. J. Q. B. 241; Phillips v. Edwards, 28 Co., sitpni. L. J. E.X. 52; 3 H. & N. 813; Austin v. (, ) Harrison v. Lorid. & Br. Ey. Co., Manch. Ky. Co., 16 Q. B. 600; 10 C. B. 29 L. .T. Q. B. 21S; 31 L. J. Q. E. 113; 454; Can- V. Lane. & York. Ey. Co., 7 2 B. & S. 122. Exch. 707; Mai-tin v. Gt. Indian Penn. (/) 17 & 18 Vict, c 31, sect. 7;post., Ey., L. R. 3 Exeh. 9. p. *'555. (c) Taylor u Great Northern Ey. Co., (g) Phillips v. Edwards, ante, p. L.E. 1 C. P. 385; 35 L. J. C. P. 210. *526; Wilton r. Eoyal Atlantic Mail St. 748 CHAP. II.] CAERIERS. * 528 The mere posting up at a particular railway station of a list of tolls taken by the company for the carriage of coals, amongst other things, will not constitute the company common carriers of coals from that particular station, if it appears that they have no accominodation there for receiving coals, and do not, in point of fact, carry them from that spot, although they carry them over other parts of their line. (]i) By the 38 Vict. c. 17, the carriage of dangerous goods is regu- lated, (i) If a carrier is employed to carry an article of such a dangerous nature as to require extraordinary care in its convey- ance, the fact must be communicated to him, or the consignor will be responsible for any injury that may result to the carrier or his servants from the want of such communication, (k) The Privy Council may make orders on persons carrying animals for hire, to cleanse and disinfect the vessels, vehicles, &c., used for such purpose. (I) Every railway company is also bound, on the written request of the consignor or person in charge of any animals carried by them, to provide the animals with food and water at such stations as the Privy Council may direct, and will have a lien for the reasonable expense of sup- plying such food and water on the animals so supplied, and also on any other animals carried for the same consignor, (m) Every common carrier of passengers with luggage is bound to take the customary quantity of luggage with each pas- senger, * consisting of such things as a traveller, accord- [*528] ing to the wants of the class to which he belongs, usually carries with him for his own personal convenience, either with reference to the immediate necessities or to the ultimate purpose of the journey; but he is not bound to carry merchan- dise or articles wholly unconnected with luggage, unless he pro- Facket Co., 10 C. B. N. s. 453; 30 L. J. plosives, see sect. 43; and as to exemp- C. P. 369. tion of carrier where consignor or con- {70 Oxlade v. Worth E. Ey. Co., 15 signee is in fault, sect. 88. C. B. N. s. 680; Johnson v. Mid. Ry. Co., {k) Farrant v. Barnes, 11 C. B. N. .s. 4 Exch. 372. 553; 31 L. J. C. P. 137. (i) Harbor authorities and railway (Q 41 & 42 "Vict. c. 74, sect. 32, xxi. and canal companies may make hy-laws sect. 62; see Cox v. Gt. East. Ry. post, as to the carriage, sects. 34, 35, and the p. * 491. Secretary of State as to other carriers, (m) 41 & 42 Vict. c. 74, sect. 33,xii., sect. 37. As to specially dangerous ex- sects. 66, 5. 749 *528 CONTRACTS FOE SEBVICES. [BOOK II. fesses to carry merchandise, or unless the traveller tenders or is ready to pay the customary hire for merchandise ; (n) or unless the carrier knows the luggage is merchandise, (nn) Deeds and money carried by an attorney in his portmanteau for use in the causes in which he may be engaged are not " ordinary luggage " for which a railway company is responsible, (o) nor is a child's rock- ing-horse, (p) nor sheets and blankets intended for the use of the passenger's household when permanently settled ; [q) but a chronometer is, it seems, luggage for a master mariner. (?-) Of the Public Profession of Railway Companies made through the Medium of their Time-Tables. — A railway company by the publication of a time-table represents that a train will run at or about the time specified, and the company will be responsible in damages to all who tender themselves for conveyance at the ap- pointed time and find that no train at all has been provided ; (s) but railway companies do not by their time-tables guarantee the arrival of their trains at intermediate stations, or their departure from them, at the exact time fixed. All they undertake to do is to carry the passenger witliout any unreasonable and unnecessary delay, (t) But the sticking up of a table of tolls at the diiferent stations does not imply that the company carries all the things mentioned therein from each station, (w) The mere taking of a ticket is not sufficient evidence of a contract to convey a pas- senger to a certain place within a given time ; the time-bills must be produced to prove the contract, (x) Booking Places in Coaches. — If four ladies, wishing to travel together, take " the whole inside of a coach,'' the coach-proprietor and his servants have no right to separate them, and do not (») Great Northern Ry. Co. i). Shep- (s) Denton v. Gt. North. Ry. Co., 5 herd, 8 Exch. 30; 21 Law J. Exch. 114; Ell. & Bl. 868; 25 L. J. Q. B. 129. Two as to passengers' luggage generally, see of the judges thought there was a con- post, p. * 544. tract, and all three that there was a (nn) Cahill v. L. & N. W. Ry. Co., tort. 10 C. B. N. s. 154; 31 L. J. C. P. 271. (t) Hurst v. Gt. West Ry. Co., 19 (o) Phelps V. Lond. & North-West. 0. B. n. s. 310; 34 L. J. C. P. 264. By. Co., 34 Law J. C. P. 259. («) O.xlade v. North-East. Ry. Co., {2J) Hudstonv. Midland Ry., 38 L.J. 16 C. B. n. s. 680; 33 Law J. C. P. 171. Q. B. 213; L. R. 4 Q. B. 366. (x) Hurst v. Gt. West. Ry. Co., 34 (q) Macrowi). Gt. Western Ry., L. B. Law J. C. P. 265; and see Robinson v. 6 Q. B. 612. Gt. West Ry. Co., 35 Law J. C. P. (r) Le Conteur v. Lond. & South- 123. West. Ry. Co., L. R. 1 Q. B. 54. 750 CHAP. II.] CARIUERS. * 529 fulfil their contract by furnishing a double-bodied coach, and tendering three inside places in one division and one in the other, (y) " If a person takes a place in a stage-coach, and pays at *the time only a deposit, as half the fare, [* 529] for example, and is not at the inn ready to take his place when the coach is setting off, the coach-proprietor is at liberty to fill up his place with another passenger ; but if at the time of taking his place he pays the whole of the fare, in such case the coach- proprietor cannot dispose of his place, but the passenger may take it at any stage of the journey he thinks fit. (z) Implied Undertaking of Rail-way Companies to forward Passen- gers or Goods without Unnecessary Delay.^ — Every railway com- pany also which has sold tickets to an intended passenger im- pliedly undertakes to provide means of conveyance and forward him to his place of destination with reasonable speed, (a) and is responsible in damages if the passenger suffers serious personal in- convenience from a breach of this undertaking, (h) But pecuniary loss sustained by the passenger by reason of his not being able to get to a place which he could otherwise have arrived at in time to meet persons with whom he liad appointments, is too remote, (c) The principle is that, if one party does not perform his contract, the other may do so for him as reasonably near as may be, and charge him for the reasonable expense incurred in so doing; and a proper test of what is reasonable is to consider whether, according to the ordinary habits of society, a person delayed on his journey would have incurred tlie expenditure in question on his own account, (d) If railways are blocked up and impeded by snow, the company is bound to use all reasonable exertions to forward the passen- gers, though extra expense must be incurred by the company in 1 Gordon v. Manchester, &c. R. E. Co., 52 N. H. 596; Savannah, &c. R. R. Co. V. Bouaud, 58 Ga. 180; McClary v. Sioux City, &c, R. R. Co., 3 Neb. 4i. (?/) Long V. Home, 1 C. & P. 611. era Ry. Co., L. R. 10 Q. B. Ill; Bur- («) Ker V. Mountain, 1 Esp. 26. ton v. Pinkerton, L. R. 2 Ex. 340. (a) Gt. North. Ry. Co. •«. Hawcroft, (c) Hamlin v. Great Northern Ry. 21 L. J. Q. B. 179. Co., 1 H. & N. 408; 26 L. J. Ex. 20. (J) Hobbs V. London & South-West- (rf) Le Blanche v. L. & N. "W. Ry. Co., 1 C. P. D. 286, C. A. 51 * 530 CONTRACTS FOE SEEVICES. [BOOK U. SO doing, wliich tliey have no means of recovering from their passengers ; but the owners of goods and cattle have no right to complain that extraordinary efforts which are made to forward passengers are not used to forward cattle and goods. " If a snowstorm occurs which makes it impossible to forward cattle except by extraordinary means, involving additional expense, the company are not bound to use such means and to incur such expense." (c) So if there be delay in delivering goods by reason of an accident occurring on the defendants' line, such accident being caused wholly by the negligence of another railway com- pany which had running powers over the defendants' line, the defendants, in the absence of a special contract to deliver within a certain time, are not responsible. (/) [*530] * Negligence of Common Carriers — Implied Under- taking. — Common carriers are bound by the mere fact of their having received passengers, independently of any con- tract, to take the utmost care for their safe conveyance ;((/ ) and if an accident arises causing injury, a common carrier can discharge himself only by proving that the accident was inevit- able : (A) that is, that it did not occur from the want of due care, not only on the part of himself and his servants, but also on the part of any independent contractor who may have been employed by him to construct the means of conveyance, (i) The carrier, however, is not bound, as we have seen {a7ite, p. * 521), at his peril to provide a carriage absolutely roadworthy at the commence- ment of the journey ; and if the carriage turns out to be defec- tive, he is not liable to a passenger for the consequences if the defect was of such a nature that it could neither be guarded against in the process of construction, nor discovered by subse- quent examination. (Je) Where a passenger stood up and looked out of the window, and by reason of the door being unfastened, (f) Briddon v. Great Northern Ey. Cork & Bandon By. Co., 13 Ir. C. L. E. Co., 28 L. J. Ex. 51. 5i3; Francis v. Cockerell, L. E. 5 Q. B. (/) Taylor v. Great Northern Ey. 184, .501; 39 L. J. Q. B. 291; John v. Co., L. E. 1 C. P. SS5. Bacon, L. E. 5 C. P. 437; 39 L. J. C. P. (,'/) Austin t). Great Western Ey. Co., 365. L. E. 2 Q. B. 442. (/,) Eeadhead v. The Midland Ey. (h) Burns v. Cork & Bandon Ey. Co., Co., L. E. 4 Q. B. 379; 38 L. J. Q. B. infra. 169; Eichardson v. Gt. E. Ey., 1 C. P. (0 Groter. The Chester and Holy- D. 342. head Ey. Co., 2 Ex. 251; Burns v. The 752 CHAP. II.] CARRIERS. * 531 fell out and was injured, it was held that there was evidence of negligence by the railway company for which they were liable. (/) But a passenger may by special agreement contract to be carried at his own risk, so as to exempt the company from responsibility for even the gross and wilful negligence of their servants ; (vi) and in such a case the company will be exempt from liability not only during the transit, but while the passen- ger is leaving the company's premises, (n) Such a special agree- ment will protect not only the company with which it is made, but also any other company on whose line the passenger may be carried in the course of the journey, (o) A common carrier of goods is not, in the absence of a special contract, bound to carry within any given time, but only within a time which is reasonable, looking at all the circumstances of the case, and he is not responsible for the consequences of delay arising from causes beyond his control. Thus when a railway company were prevented, by an unavoidable obstruction on their line, from carrying the plaintiff's goods within the usual (a * reasonable) time, and the obstruction was [*531] caused by an accident resulting solely from the negli- gence of another company, who had, under an agreement sanc- tioned by act of parliament, running powers over their line, it was held that the first-named company were not liable to the plaintiff for damage to his goods caused by the delay, (p ) An invitation to passengers to alight on the stopping of a train, without any warning of danger to a passenger, who is so circumstanced as not to be able to alight without danger, such danger not being visible and apparent, amounts to negligence, (q) The opening of the carriage door is an invitation to alight ; (r) and so is the bringing up of a train to a final stand-still, for the (I) Gee V. Metropolitan Ry. Co., L. p. * 556, Railway and Canal Act, reason- R. 8 Q. B. 161, commenting on Adams able conditions. V. L. & Y. Ry., L. R. 4 C. P. 739. (p) Taylor v. Great Northern Ry. (m) McCawley v. Furness Ry. Co., Co., L. R. 1 C. P. 385; 35 L. J. C. P. L. R. 8 Q. B. 57; 42 L. J. Q. B. 4. 210. (n) Gallin v. London & North West- (?) Cockle v. L. & S. E. Ry. Co., L. em Ry. Co., L. R. 10 Q. B. 212. R. 7 C. P. 321. (o) Hall V. North-Eastern Ry. Co., (r) Prager v. Bristol & Exeter Ry. L. R. 10 Q. B. 437; as to how far this Co., 24 L. T. n. s. 105; L. & N. W. Ry. applies to carriage of goods, see post, v. Hellawell, 26 L. T. n. s. 557; Gill v. G. E. Ry., 26 L. T. N. s. 945. VOL. I. 48 753 *532 CONTRACTS FOR SERVICES. [BOOK II. purpose of the passengers alighting, after such a time has elapsed that the passenger may reasonably infer that it is intended he should get out, if he purposes to alight at the particular sta- tion, (s) If the plaintiff, exercising his own discretion, chooses to get out of a train wliich has overshot the platform, the com- pany are not responsible, (t) especially when the station is well known to the plaintiii'. (u) Calling out the name of the station before the train has come to a stand-still is not an invitation to alight ; nor is merely over-shooting the platform negligence, (v) But if the porter has called out the name of the station, and the engine-driver has overshot the platform, and the train has come to a stand-still, and no warning is given not to alight, the jury may very properly say that a passenger is not guilty of negli- gence in getting out. (x) Similar considerations arise in cases where the door of a railway-carriage is slammed by a porter upon the hand of the plaintiff, and which may or may not be the negligence of the company or of the plaintiff, according to circumstances, (■i/) Loss of Goods by Common Carriers. ^ — " The law," observes Holt, C. J., " charges every person exercising the public employ- ment of a common carrier, common hoyman, or master [*532] of a ship intrusted to * carry goods, against all events but acts of God and enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this ' See note on Liability of common carrier for loss by fire, by A. C. Freeman, 31 Am. Dee. 554. (*) Cockle 0. L. & S. E. Ey. Co., Dover Ey. Co., L. E. 9 Q. B. 66; Cockle supra; Bridges v. L. & N. "W. Ey., L. v. Soutli-Eastern Ey. Co., L. E. 5 C. P. E. 7 H. L. 215; Eoae t). N". E. Ry., L. 468; 7 C. P. 321. R. 2 Ex. D. 248; Kichols v. Gt. South- (j) "V\' eller v. London, Brighton & ern Co., 7 Ir. C. L. 40; 21 W. E. 387. South Coast Ey. Co., L. E. 9 C. P. 126. (0 Siner v. G. W. Ry., L. R. 4 Ex. ()/) Fordham v. L. B. k S. C. Ey., 117; 38 L. J. Ex. 67; but seeper Brett, L. R. 4 C. P. 619; 38 L. J. C. P. 324; L. J., on this case in Robson v. N. E. Richardson v. Met. Ry., 37 L. J. C. P. Ry., L. R. 2 Q. B. D. 86: 46 L. J. Q. B. 176; Maddoxu L. C. & D, Ey., 38 L. T. 50; and see "Weller v. L. B. & S. C, in- N. s. 458; Coleman v. S. E. Ry., 4 H. & fra, and Rose v. N. E. Ey., siipra. C. 699; Jackson v. Met. Ry., L. R. 10 (u) Lewis V. L. C. & D. Ry., L. E. 9 C. P. 49; Met. Ry. Co. v. Jackson, 3 Ap. Q. B. 66. Cas. 193. (d) Lewis V. London, Chatham & 754 CHAP. II.] CARRIERS. *632 is a politic establishment contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sort of persons, that they may be safe in their dealings. For else these carriers might have an oppor- tunity of undoing all persons that had any dealings with them by combining with thieves, &c., and yet doing it in such a clandestine manner as would not be possible to be discov- ered. And this is the reason the law is founded upon in that point." (z) By the term " act of God " is meant something in opposition to the act of man, such as storms, lightning, tempests, and inevi- table accidents not resulting from human agency. If the danger or the accident, though unavoidable, has been occasioned by the act of man, the carrier cannot avail himself of it as an excuse for tlie non-delivery of the goods, (a) Thus, where an action was brought against a common carrier for not safely carrying and delivering a quantity of hops, and it appeared that a fire broke out in a building adjoining a booth under which the carrier had placed the hops, and burnt with inextinguishable violence, and extended itself to the hops, and consumed them, without any neglect or default on the part of the carrier himself, it was held that, inasmuch as the fire had not been occasioned by lightning, but by the act of man, the occurrence of the disaster constituted no answer to the action, (b) If the goods have been destroyed or swept away by rains and floods, the circumstances attendant upon the loss must be regarded, in order to determine whether it has been occasioned by the act of God or the act of man. If the common carrier has neglected to provide proper covering for the goods ; if he has gone out of his way to meet the danger ; if he has travelled by unusual roads, or crossed a plain subject to inun- dations when he might have kept the high ground and been safe, the loss occasioned thereby is a loss from the act or negligence of man, and the common carrier is consequently responsible therefor, (c) (2) Coggs V. Bernard, 2 Ld. Raym. (6) Forward v. Pittard, 1 T. R. 33; 909; 1 Smith's L. Ca. 6th ed. 177. Hyde v. Trent Nav. Co., 5 T. R. 399. {a) Oakley v. Ports., &c. Steam (c) Doct. & Stud., Dial. 2, ch. 38; Packet Co., 11 Exch. 622; 25 Law J. Noy, ch. 43. Exch. 99. 755 * 533 CONTRACTS FOE SERVICES. [BOOK II. If a barge-owner who carries goods for Lire on a canal accepts certain goods to be carried for hire, and rats gnaw a hole in the barge and cause a leak, and the goods are injured, the barge- owner is responsible for the damage, {d) He is not, of course, responsible for any deterioration in the value of the goods result- ing from the negligence or want of care of the owner or [ * 533] the consignor, such as * defective packing, nor for losses occasioned by an inherent defect in the article, causing its destruction. If, however, the defective packing of goods is patent and visible, and easily remedied, and he accepts the goods for conveyance, he is bound to take all reasonable means to provide against the defect and secure their safety. Where a dog, with a string about his neck, was delivered to a common carrier to be carried, and was tied by the string in a watch-box, and shortly afterward the dog slipped his head through the noose and escaped, and was never seen afterward, and an action was brought to recover the value of the dog, and it was contended that the owner ought to have taken care that the cord was prop- erly secured round the dog's neck, it was held that as the common carrier had the means of seeing that tlie dog was insuffi- ciently secured, he ought to have locked him up or taken other proper means to secure him, and that he was responsible for the loss, (c) Where, however, a greyhound, secured in the way ordinarily adopted and obviously intended by the owner to be used, viz., by a collar and strap, was delivered to a railway com- pany to be carried, and the greyhound during the journey slipped his head through the collar and was lost, it was lield that the company was not responsible. (/) Common carriers are not responsible for the " inherent vice " of the goods which they carry, so that where animals are injured by their own acts and without any negligence on the part of the carrier, the carrier is not liable, {g) If a cargo or load of goods weighing a certain weight be delivered to a common carrier to be carried for hire, and the cargo on its arrival at its destination is deficient in weight, there (d) Dale V. Hall, 1 Wils. 281. (g) Blower v. G. W. E.y., L. E. 7 0. (c) Stuart V. Crawley, 2 Stark. 324. P. 655; Kendal v. L. & S. W. Ky., L. R. (/) Eichardson v. North-East. Ey., L. E. 7 C. P. 75. 756 CHAP. 11.] CARRIERS. * 534 is a prima facie pvesumption of negligence on the part of the carrier which the latter must rebut by showing that the deii- ciency of weight arose from causes over which he had no con- trol. Qi) If the accident or casualty causing the loss of the goods is occasioned by the misconduct of a third person, and not by any fault or neglect on the part of the common carrier himself, the latter is nevertheless responsible to the owner for the loss, as he has himself a remedj'' over against the offending party. Thus where the ship of a common carrier by water drove on an anchor in the Eiver Humber and was sunk, and the goods on board were injured, and the accident was occasioned by the neglect of a third person in not having his buoy out to mark the place where his anchor lay, it was held that the common carrier was nevertheless * bound to make good the loss, (i) But if [* 534] the misconduct of the third person is caused by the orders of the owner of the goods, the carrier, of course, wiU not be responsible. Qc) If a man professes to be a common carrier of passengers merely, and only receives occasionally, and at his own option, some trifling articles of luggage with such passengers, to be carried gratuitously for the accommodation of the latter, he cannot be charged as a common carrier of goods for the loss of them. He is in such a case a gratuitous bailee of the goods, and chargeable only with the liabilities and responsibilities of a person who gratuitously undertakes to carry goods for another. Such is an omnibus proprietor, who professes only to carry pas- sengers, and receives his hire solely therefor, but occasionally receives and carries gratuitously small bundles and parcels for the accommodation of his passengers. As he does not profess to carry goods for hire, he cannot be compelled to receive them as a common carrier of goods, neither can he be charged except as a gratuitous bailee for the loss of them. And if luggage is carried free, upon the express terms that the passenger shall himself take charge of it, and that it shall be taken at his risk, 7 Kx. 373; Gill v. Manchester, S. & L. (i) Trent Nay. Co. v. Ward, 3 Esp. Ey., L. E. 8 Q. B. 186. 130. {h) Hawkes v. Smith, Car. & M. 72. {k) Butterworth v. Brownlow, 34 Law J. C. P. 267. 757 * 535 CONTRACTS FOK SERVICES. [BOOK II. he cannot make the carrier responsible for the loss of it. (l) If, however, the carrier or coach-proprietor professes to carry both passengers and luggage, he is clothed, as regards the conveyance of the luggage, with the obligations and responsibilities of a common carrier of goods for hire, (m) whether the hire is paid by the passenger or by some other person on his behalf or for his benefit. (?(-) Contributory Negligence. — If goods delivered to be carried are lost or stolen by the way, and the conduct of the bailor or consignor himself has conduced to the loss, he has no ground at common law for seeking compensation at the hands of the common carrier, (o) Thus where a man hid one hundred pounds sterling in some hay in an old nail bag, and delivered it to a common carrier to be carried to a banker, and the money was lost, it was held that the common carrier was not responsible for the loss, as the consignor had neglected to inform the carrier of the exceeding value of the bag, and had thereby prevented him from taking proper care of it. (p ) So where the consignor concealed a quantity of guineas in an ordinary brown-paper parcel tied with a string, (q) and [ * 535 ] a number * of sovereigns in a packet of tea, (r) and sev- eral hundred pounds' worth of bank-notes and gold in an ordinary school-boy's box, and the money so sent was lost by the way, it was held that the common carrier was not responsible for the loss of it. (s) And if glass or china, or fi'agile articles requiring great care for their safe conveyance, are put into boxes and packages and delivered to a carrier to be carried, and no notice is given to the latter of the peculiar nature of the con- tents of such packages and of the additional care required for their safe conveyance, and the things are damaged in the course of the transit, the carrier is not bound to make good the damage, [I) Stewart v. Lond. & North-West. (o) Butterworth v. Brownlow, supra. Ry. Co., 33 Law J. Exch. 199. As to (?)) Gibbon v. Paynton, 4 Burr. passengers' luggage generally, see post, 2298. p. * 544. {q) Clay v. Willan, 1 H. Bl. 298. (m) Brooke o. Pickwick, 4 Bing. (r) Bradley v. Waterliouse, 3 C. & 218. P. 318. (m) Marshall v. York & Newcastle (s) Batson v. Donovan, 4 B. & Aid. Ry. Co., 11 C. B. 655; 21 Law J. C. P. 37; Mayhew v. Eames, 3 B. & C. 601; 24. 5 D. & R. 487. 758 CHAP. II.] CARRIERS. * 536 as the consignor has himself directly contributed to the injury by concealing the peculiar nature of the articles and the amount of care req^uisite for their safe conveyance. Contributory negli- gence, it must be borne in mind, is that sort of negligence which, being a cause of the injury, is of such a character that its effect could not have been counteracted or avoided by the ordinary care of the defendant, (t) Contributory negligence in actions against carriers is frequently set up where the plaintiff alleged that he was injured in alighting from a train, (w) or in getting his hand trapped upon entering the carriage, (x) or v/hile travelling from the flying open of the carriage door, (j/) Limitation of the Liability of Common Carriers by Public Notice — - Carriage of Gold and Silver, JeTvelry, Title-deeds, Glass, Silk, &c.^ — As the common carrier was responsible at common law for the safe carriage of goods and merchandise, and was bound to make good losses by robbery, he was allowed to charge a rate of carriage proportioned to the risk he ran. This risk naturally depended upon the value of the articles he car- ried ; and therefore, when a common carrier was required to carry a bag of gold across Hounslow Heath, it was thought that he was justly entitled to charge more than the ordinary rate of remuneration for merchandise, (s) " His warranty and insur- ance," observes Lord Mansfield, " are in respect to the reward he is to receive ; and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance, he will take greater care, use more caution, and be at tlie expense of more guards and other methods of security ; and therefore he ought in reason and in justice to have a greater reward." "A higher price ought in * conscieuce to [*536] be paid him for insuring the safety of money, jewels, and valuable things, than for insuring common goods of small value." (a) Hence, when packages were brought to common I See post, p. * 542, American note. {i] See Horane Smith on Negligence, (u) See the cases, anle, p. * .531. 150; Eadley v. L. & N. W. Ry., 1 Ap. (x) See the cases, ante, p. *531. Cas. 754; 46 L. J. 573. As to the neg- (y) Adams v. L. & Y. Ry., L. R. 4 C. ligence of a third party, see the above P. 739; Gee v. Met. By., L. E. 8 Q. B. work, and Ayles v. S. E. Ry. Co., L. R. 161. 3 Ex. 146; Daniel ?>. Met. Ry., L. E. 5 (-) Tjtj v. Morrice, Carth. 480. H. L. 45. (a) Aston, J., 4 Burr. 2302, 2303. 759 * 536 CONTRACTS FOK SERVICES. [BOOK II. carriers for conveyance, it became usual for the latter to ask the value, and to charge accordingly, and it was lield that the owner was in all cases bound by his representation of value, and could not give evidence of the falseness of his own state- ment, in order to throw an increased responsibility upon the common carrier. But the owner was not bound to declare the value of the parcel unless he was aslced ; if the common carrier asked no questions, and there was no fraud or intentional con- cealment to give the case a false complexion, the common car- rier was responsible for the safety of the parcel, whatever might be its value. (&) To obviate the inconvenience of asking questions in each case and the difficulty of proving the statements made on each occa- sion, common carriers resorted to the expedient of advertising in newspapers, and posting on the walls of their booking-offices, public notices to the effect that they would not be liable for the loss of money and valuables enclosed in packages and parcels, unless they received notice of their existence, nor for the loss of ordinary goods and chattels beyond a certain amount, unless the value of such goods was declared and entered at the office, and an increased rate of remuneration paid for their conveyance. So long as these public notices and advertisements were used with the bona fide intention of protecting the common carrier against fraud on the part of persons sending packages of great value and small bulk for conveyance, and of securing to him a rate of re- muneration proportioned to the value of the parcel and the risk he ran, they were encouraged and supported ; (c) but when they were used, as they soon were, for the purpose of enabling the common carrier altogether to shake off his common law respon- sibility, and of concealing and favoring fraud towards his cus- tomers, and shielding him from the consequences of his own negligence and misconduct, they were condemned and di.scour- aged. All sorts of difficulties at last arose with respect to these notices. On some occasions they were held to be inoperative, because the party bringing the goods to the office where they were posted up was unable to read, and the notice consequently (5) Riley D. Home, 2 M. & P. 340. Harris v. Packwood, 3 Taunt. 264; (c) Gibbon 1). Paynton, 4 Burr. 2301; Marsh v. Home, 5 B. & C. 326. 760 CHAP. II.] CARRIERS. * 537 afforded him no information, (d) or, being able to read, he never did read the notice ; (e) and it was sometimes held that the at- tention of the consignor of the parcel ought to be drawn to the printed terms of conveyance in such a * way that [ * 537 ] if he remained in ignorance of them, such ignorance was wilful, or attributable to his own negligence. (/) The contradictory decisions upon the proof and effect of these notices, and the confused state of the law respecting them, at last rendered the interference of the legislature necessary, in order to protect the common carrier, on the one hand, from fraud and concealment on the part of the consignor of parcels and packages, and to protect the consignor, on the other, from fraud, negligence, and misconduct on the part of the common carrier. Common Carriers' Act — Declaration of Value by Consignors.^ — The 11 Geo. IV. and 1 Wm. IV. c. 68, commonly called the Carriers' Act, by sect. 1 exempts common carriers by land from liability for the loss of (^) or injury to gold or silver, precious stones, jewelry, watches, clocks, trinkets, bills, orders, notes, or securities for payment of money, stamps, maps, writings, title-deeds, paintings, (h) engravings, pictures, (i) plated articles, glass, (k) china, silks, (Q in a manufactured or unmanufactured state, furs, lace, (m) wrought up or not wrought up with other materials, («-) contained in any parcel or package which shall have been delivered either to be carried for hire or to accompany 1 SeelJ. S. Rev. Stat. sect. 4281; also^osi!, p. *542, American note. {d) Davis v. "Willau, 2 Stark. 280. v. London & North-Western Ry. Co., L. (c) Kerr v. Willan, ib. 44; Butler v. R. 5 Ex. 90. Heane, 2 Campb. 415. (^) As to a glass frame, see Tread- (/) Clayton v. Hunt, 3 ib. 27; Gou- win v. Gt. Eastern Ry., L. R. 3 C. P. ger V. Jolly, Holt, 317; Walker v. Jack- 308. son, 10 M. & W. 173; Brooke v. Pick- (?) Silk gnards and silk dresses are wick, 4 Bing. 222; see eases as to these included under the term silks. Bern- points, post, p. *544, Passengers' lug- stein v. Baxendale, 6 C. B. N. s. 259; gage. 28 L. J. C. P. 265; overruling Davey (g) Hearn v. Loud. & S. W. Ry. Co., v. Mason, Car. & M. 50. So, also, is 10 Exch. 801; 24 L. J. Ex. 180. elastic silk webbing, made as described {h) I. e. paintings which are works in Brunt v. The Midland Ry. Co., 2 H. of art, see Woodwards. L. & N. W. Ry., & C. 889; 33 L. J. Ex. 187. 3 Ex. D'. 121. (™) By the 28 & 29 Vict. c. 94, sect. (i) Where framed pictures are sent 1, the term "lace" is not to include by a carrier, the frames as well as the machine-made lace, pictures are within the act. Henderson {n) See Brunt v. Mid. Ry., svpra. 761 * 538 CONTRACTS FOK SERVICES. [BOOK II. the person of any passenger in any public conveyance, when the value of such articles or property contained in such parcel or package shall exceed the sum of ten pounds, unless, at the time of the delivery thereof for the purpose of being carried or of accompanying the person of any passenger, the value and nature of such articles or property shall have been declared by the person sending or delivering the same, and the increased charge thereinafter mentioned (sect. 2), or an engagement to pay the same, accepted by the person receiving such parcel or package. Pictures placed in a wagon with wooden sides, but without a top, so that they could be seen to be pictures, but their exact character could not be seen, were held to be contained in a parcel or package, (o) Mere mention of the value to a [*538] station-master is * no declaration of value vvitliin the meaning of the act, if it was not intended to operate as a declaration of value, (p) When the declaration is formally made, the carrier is entitled, if the value exceeds £10, and he has a notice of the increased rate of charge for parcels exceeding the value of £10 stuck up in his office, to demand the increased rate of charge ; but if he does not think to notify the increased rate of charge, he cannot demand it ; and if he has notified it, but fails to demand it, he must be taken to have received the goods subject to his common law liability as an insurer of their safe conveyance, and will not be entitled to the protection of the statute, (q) The consignor is bound by his declaration, and can- not afterward show that the value of the goods exceeded that declared, (r) If the journey is to be performed partly by land and partly by sea, the contract is divisible, and the carrier is entitled to the protection of the Merchant Shipping Acts as far as the journey is to be performed by sea, (,s) and to the protec- tion of the Carrier's Act so far as it is to be performed by land ; (t) and he will not lose sucli protection by having received tlie goods under a special contract, unless its terms are inconsis- (o) Whaite v. L. & Y. Ry. Co., L. E. (r) M'Cance v. Lond. & 'N. W. Ry. 9 Ex. 67. Co., 3 H. & C. 343; 34 ].. J. Ex. 39. (p) Robinson v. S. W. Ry. Co., 19 (.9) London & S. W. Ry. Co. v. C. B. N. s. 51; 34 L. J. C. P. 235. James, L. R. 8 Oh. '241; 42 L. J.Ch. 337. (q) Behrens v. Gt. North. Rv. Co., (<) Le Conteur v. London & S. W 30 L. J. Ex. 153 ; 31 L. J. Ex. 299; 7 Ry. Co., 6 B. & S. 961; L. R. 1 Q. B. H. & N. 950. 54; 35 L. J. Q. B. 40. 762 CHAP. II.] CARRIERS. * 539 tent with the goods having been received by him in his capacity of a common carrier, (m) Of the fixing up of Notices required by the Statute. — By sect. 2, when any parcel or package containing any of the speci- fied articles shall be delivered, and its value and contents de- clared, and such value shall exceed ten pounds, it shall be lawful for such common carriers to demand and receive an increased rate of charge, to be notified by some notice af&xed in legible characters in some public and conspicuous part of the office, Avarehouse, or receiving-house where such parcels are received by them for the purpose of conveyance, stating the increased rate of . charge required to be paid over and above the ordinary rate of carriage as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles, and all persons sending or delivering parcels containing such valuable articles at such office shall be bound by such notice, without farther proof of the same having come to their knowledge. By sect. 3, when the value shall have been so declared, and the increased rate of charge paid, or an engagement to pay the same * shall have been accepted, the person receiv- [*539] ing such increased rate of charge or accepting such engagement shall, if required, sign a receipt for the parcel, ac- knowledging the same to have been insured, which receipt shall not be liable to any stamp duty ; and if such receipt shall not be given when required, or such notice shall not have been affixed, the common carrier shall not be entitled to any benefit or advantage under the act, but shall be responsible as at com- mon law, and be liable to refund the increased rate of charge. No public notice or declaration is (sect. 4) to limit or in anywise affect the liability at common law of any such common carriers. Every office, warehouse, or receiving-house which shall be used or appointed by any common carrier for the receiving of parcels to be conveyed, is (sect. 5) to be deemed and taken to be the receiving-house, warehouse, or office of such common carrier. And where any parcel shall have been delivered at any such office, and the value and contents declared, and the increased rate (u) Baxendale v. The Great Eastern Ey. Co., L. E. 4 Q. B. 244 ; 38 L. J. Q. B. 137. 763 *540 CONTRACTS FOE SERVICES. [BOOK II. of charge paid, and such parcel shall have been lost or damaged, tJie party entitled to recover damages in respect of such loss or damage shall also be entitled (sect. 7) to recover back such increased charges, in addition to the value of such parcel. Nothing in the act is (sect. 6) to annul or affect any special contract betvt^een such common carriers and any other parties for the conveyance of goods and merchandise ; but this section only applies to contracts, the provisions of which are inconsistent with the exemption claimed by the carrier under the first sec- tion ; (>r) nor (sect. 8) to protect any common carrier for hire from liability to answer for loss or injury to any goods or articles arising from the felonious acts of any coachman, guard, book- keeper, porter, or other servant in his employ, nor to protect any such coachman, &c., from liability for any loss or injury occa- sioned by his own personal neglect or misconduct. The fourth section of the Carriers' Act (cited supra) enacts that no puV)lic notice or declaration sliall be deemed or con- strued to limit, or in anywise affect, the liability at common law of any common carriers in respect of any articles or goods to be carried or conveyed by them, but that they shall be liable, as at common law, to answer for the loss of or injury to any articles and goods in respect whereof they may not be entitled to the benefit of that act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability, notwithstanding. But nothing contained in the act is (sect. 6) to annul or in anywise affect any special contract [ *540] between common carriers * and any other parties for the conveyance of goods and merchandise. This statute is confined to public notices, such as were very common before the act, — notices addressed to the public at large, raising a question in every case whether the notice was brought home to the par- ticular person. It is not applicable to a notice specifically delivered to form the basis of a special contract with him. ( y) Where the common carrier is not a common carrier of the par- ticular description of goods tendered him for conveyance, and has the option of receiving them or rejecting them at his own (.r) Baxendale v. Gt. Ea.stern Ey., By. Oo., 2 Ell. & Bl. 761; Van Toll ti. I'pra. South-Ea.stern Ey. Co., 31 L. J. C. P. (H) Walker v. York & North Mid. 2il. 764 CHAP. II.j CARRIERS. * 541 good will and pleasure, he may prescribe his own terms of con- veyance ; and if the party delivering goods to be carried has been personally served with a notice of the terms on which the common carrier carries goods, and after seeing the notice sends the goods, he must be taken to agree that they shall be carried on those terms, and there is then a special contract between him and the common carrier for their conveyance, (.:) unless the car- riage is by railway or canal, so as to necessitate a signed special contract under the Eailway and Canal Traffic Act. («) But this is not the case with regard to such articles as the common carrier is bound by his public profession and employment to carry. With regard to them, the owner has a right to insist that the common carrier shall receive tlie goods subject to all the respon- sibilities incident to his employment, (b) " If the delivery of goods under such circumstances authorizes an implication of any kind, the presumption is as strong, to say the least, that the owner intended to insist on his legal rights, as it is that he was willing to yield to the wishes of the carrier." (c) A remover of furniture for hire is not generally, as it should seem, a common carrier, and at all events where a special contract is entered into between the owner of the furniture and the carrier, it would ex- clude any question of liability as a common carrier, {d) Special contracts with railway and canal companies must, as we shall presently see, be authenticated by a signed writing {post, p. * 555). If the consignor of packages exceeding £10 in value, containing the valuable articles specified in the Carriers' Act, objects to pay the ad valorem rate of carriage or premium of insurance, and wishes to have the parcel carried as a parcel of ordinary value, at the ordinary rate of carriage for parcels of similar bulk and weight, the common carrier may, if he pleases, waive his right to the increased remuneration or premium * of insurance, and agree to carry for a smaller sum, [ *541 ] upon the terms that he is not then to be responsible upon the extended customary liability of a common carrier as (z) "Wightman, J., 2 Ell. & Bl. 760. (c) Hollister v. Nowlen, 19 Wend. (a) Posi, p. * 555. 247; New Jersey St. Wav. Co. v. (S) Ld. Keuyon, Kirkman v. Shaw- Merchts. Bank, 6 How. 344; Crouch ii. cross, 6 T. E. 17; Garton v. Brist. & London & North-West. Ey. Co., 23 L. Ex. Ey. Co., 1 B. & S. 162; 30 L. J. Q. J. C. P. 73. B. 276. (d) Scaifei). Farrant, L.E. lOEx.358. 765 * 541 CONTRACT FOE SEKVICES. [BOOK II. an insurer against robbery and the dangers and accidents of the road. " This limitation," observes Parke, B., " it is competent for a common carrier to make, because, being entitled by common law to insist on the full price of carriage being paid beforehand, he may, if such price be not paid, refuse to carry upon the terms imposed by the common law, and insist upon his own terms." («) Common Carriers may protect themselves by Special Contract from Loss by Fire and Sea Risks, and may carry gOods on the terms that they are not to be held responsible at all for such losses. (/) Stipulations exempting Common Carriers by Water from Loss of Luggage, unless a Bill of Lading has been signed for it. — Where the Atlantic Mail Steam Navigation Company issued passengers' tickets on which was printed a notice or condition " that the ship will not be accountable for luggage, goods, or other descriptions of property, unless bills of lading have been signed therefor, each passenger allowed twenty cubic feet of lug- gage free," it was held that the company had a right to impose this condition on their passengers, provided it was imposed ujwn all alike ; that the passenger, therefore, was bound to get a bill of* lading for all the luggage for whicli he intended to make the ship accountable, but tliat he had the option of taking luggage under his own personal control without any bill of lading, carry- ing it, in that case, at his own risk, {g) If the company does not impose the same terms upon all passengers alike, or the pas- senger offers to sign a bill of lading and is unable to obtain it, the company cannot avail themselves of the condition as pro- tecting them from liability, [li) When the Carrier may by Special Contract exempt himself from all Responsibility for Damage to Certain Classes and Descriptions of Goods in Transitu.^ — Whenever a man enters 1 Former American decisions upon the right of common carrier."! to limit their strict common law liability were very conflicting ; but there is a strong tendency (e) Wyld V. Piokford, 8 M. & W. [g) Wilton v. Eoyal Atl. Mail St. 458. Nav. Co., 10 C. B. N. s. 453; 30 L. J. (/) Having V. Todd, 1 Stark. 74 ; C. P. 369. Collins V. Brist. & Ex. Ry. Co., 11 Exch. (^i.) Gt. West. Ky. Co. v. Goodman, 790; 7H. L. C. 205. 12 C. B. 313. 766 CHAP. 11.] CARRIEES. * 541 into a contract for the carriage of goods, he impliedly grants or lets out some labor and care for the accomplishment of the work in recent years towards agi'eement. That there may be some limitation of the liability is now generally conceded; the chief questions lately discussed are: Is a notice sufficient, or must the customer assent ? If assent is requisite, must this be explicit, or may it be implied from silence or imputed from circumstances ? And may the entire double liability of the carrier be restricted, or is the privilege of limiting it confined to that aspect of his responsibility in which he is viewed as an iusiirer, leaving the liability for negligence either of the principal or of his agents or servants to be invariably enforced according to strict rules of law ? The course of decision in the United States Supreme Court disallows a mere notice or implied contract. The doctrine there is that the liability of a carrying company may be limited by a contract ; but there must be a proper contract, to which the actual assent of the customer is necessary, and also that the privilege of contract- ing for a limitation is allowable only within snch limits as are just and reasonable, and consistent with the general policy of the law. Thus even an explicit con- tract that the company shall not be chargeable for losses attributable to negligence of its agents and servants is not enforceable against the customer. Eailroad Co. V. Manufacturing Co., 16 Wall. 318 ; Ayres v. Western R. R. Corp., 14 Blatchf 9 ; but see restriction on the doctrine of this case suggested in AVertheimer v. Pennsylvania R. R. Co., 1 Fed. Reporter, 232 ; and views sustaining limitations couched in the form of an agi'eement fixing the value of the property earned, in Hart V. Pennsylvania R. R. Co., 2 McCrary, 333; Muser «. Holland, 17 Blatchf. 412 ; .s. p. even under the Illinois Statute, Mather i>. American Exp. Co., 9 Biss. 293. See further, Insurance Co. v. St. Louis, &c. Ry. Co., 9 Fed. Reporter, 811. The decisions in the courts of most of the States appear to be substantially in accord with this doctrine. The positions, that a notice to the customer does not affect his rights even if brought to his knowledge, but he is entitled to commit his property to a cariying company for transportation under its public duty, if he chooses to do so; that he may, however, if some advantage, such as a lower rate, is given him, bind himself by an assent to relieve the company of a part of it ; and that this assent will not operate to discharge it from losses from negligence ; have been taken more or less distinctly in a number of adjudications. Alabama, Col- orado, Connecticut, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, North Carolina, Ohio, Pennsylvania, Tennessee, Ver- mont, Virginia, are stated by Mr. Lawson (Lawson, Contr. Car.) to have sub- stantially adopted such tenets, and the most recent decisions indicate general adherence to them. Dillard v. Louisville, &c. R. R. Co., 2 Lea, 288; Merchants' Despatch Transp. Co. v. Leysor, 89 111. 43 ; Merchants' Despatch Transp. Co. v. Joesting, ib. 152; American Exp. Co. v. Spellman, 90 111. 455; Erie, &c. Transp. Co. V. Dater, 91 111. 195; Michigan Central R. R. Co. i: Boyd, ib. 268; Boscowitz V. Adams Express Co., 93 111. 523; Shriver v. Sioux City, &c. R. R. Co., 24 Minn. 506 ; Hadd v. United States, &c. Exp. Co., 52 Vt. 335 ; Green v. Boston, &c. R. R. Co., 128 Mass. 221; New Orleans, &c. R. R. Co. v. Faler, 58 Miss. 911; Mer- chants' Despatch, &o. Co. v. Cornforth, 3 Col. T. 280; Chicago, &c. R. R. Co. v., Hale, 2 111. App. 150 ; Capehart v. Seaboard, &c. E. R. C;o., 81 N. C. 438. In Iowa and Texas, the courts would, at least until very lately, have been restricted or prevented from sustaining even express contracts limiting the liability by stat- utes forbidding such limitations. West Virginia has long allowed theni, and until lately carried the view so far as to sustain stipulations against liability for 767 * 542 CONTRACTS FOR SERVICES. [BOOK II. of carrying, in return for the hire paid or agreed to be paid him ; and it was formerly held that he could not enter into the con- tract and at the same time say that he would bestow no labor or care at all in and about the performance of what he had under- taken to do, and for which he received his hire. " It is impos- sible," justly observes Lord Ellenborough, "without [*542] outraging common sense, so * to construe a special con- tract for the carriage of goods, as to make the carrier say : ' We will receive your goods, but we will not be bound to take any care of them, and will not be answerable at all for any loss occasioned by our own misconduct, be it ever so gross and injurious.' " (i) " If the carrier should perchance refuse to carry negligence; but the former decision to this effect (Baltimore, &i\ E. R. Co. v. Kathbone, 1 W, Va. 87), has been oyerruled. In a recent case (ilaslin v. Balti- more, &c. R. R. Co., 14 W. Va. 180; reasserted, Brown v. Adams Exp. Co., 15 ib. 812), the Supreme Court of that State has re-examined the fomier case, and pro- nounced it erroneous; and has thus harmonized its ruling with the weight of opinion elsewhere. Early views in New York were adverse to allowing the carry- ing companies any privilege of throwing off the liability imposed by old English law. Later cases continue to disallow mere notice; the assent of the customer to the proposal to carry his goods at his own risk must be obtained; it may, however, he presumed from such circumstances as fairly imply it, for example, from accept- ing a receipt containing a limitation, with full opportunity to understand its terms, and without objecting. By special contract, cariying companies may pro- tect themselves from any liability, including that for losses ascribable to negli- gence of employees. The company cannot absolve itself at all by any act of its own agents merely, but with the assent of the customer freely given and fully proved, the limitation may be carried to almost any extent. The latter rule is, however, administered with a good degree of strictness. The Court of Appeals has declared that special clauses in radroad contracts ought <)lways to be con- strued, if possible, as designed to embrace only losses which are not attributable to negligence. Every presumption is against an intention to contract for im- munity for not exercising ordinary diligence in the transaction of business. If, therefore, the language of the contract admits of two constructions, that one is to be preferred which leaves the company liable for losses accruing by negligence, and exempts it from tho.se only which arise otherwise. This view is" carried very far in Minard v. Syracuse, &c. R. R. Co., 71 N. Y. 180. In this case there was presented a receipt for live-stock, containing a stipulation that the company should be released from all liability "of every kind and character whatsoever, for or on account of or connected with any damage or injury to, or the loss of, said stock, or any portion thereof, from whatsoever cause arising." The court held that this general language, if read in connection with the circumstances, might well be satisfied by limiting it to such extraordinary liabilities as carriers sustain without fault or negligence on their part, and that it did not exempt from negli- gent losses. See further, Spinetti v. Atlas Steamship Co., 80 N. Y. 71 ; Hols- apple V. Rome, &c. R. R. Co., 86 N. Y. 276. (/■) Lyon V. Mells, 5 East, 438. 768 CHAP. II.] CARRIERS. * 542 the stuffe, unless promise were made unto him that he should not be charged for any misdemeanour that should be in him, the promise were void ; for it were against reason and against good manners ; and so it is in all other cases like." (k) In the case of articles of a perishable nature, such as fish, or of a very- delicate and fragile nature, such as statuary, sculptured alabaster, or marble, which the common carrier does not commonly profess to carry, and which may be readily injured, nobody knows how, the common carrier may, as we have seen, refuse to receive and carry such articles, except under a special contract exonerating him from all responsibility for damage done to them in transitu not occasioned by the neglect or default of himself or his ser- vants, (l) So with regard to horses, it is said to be very reason- able that common carriers by railway should be allowed to make agreements for the purpose of protecting themselves against the peculiar risks attendant upon the carriage of horses by railway, arising from the rapid motion and strange noises, wliich are cal- culated to alarm horses and cause them to kick and break the carriage, and do themselves injury. It was therefore lield, before the passing of the Eailway and Canal Traffic Act {post, p. * 555), that railway companies might by special contract throw the risk of the conveyance of a horse by railway upon the owner of the horse, so that if the horse was injured in the transit from any ordinary railway casualty, the owner would ha\'e no remedy against the company for the loss, (m) The notices commonly given by common carriers before the passing of the Carriers' Act, that they would not be responsible for the loss of or damage to parcels above a certain value, unless the value was declared and a premium of insurance paid, were held to apply only to the responsibilities and liabilities of the carrier as an INSURER of the safety of the goods, and did not and could not exempt him, in the absence of fraudulent concealment of value or risk on the part of the consignor, from the conse- (k) Doct. & Stud. Dial. 2, ch. 39; (m) Cavr v. Lane. & York. Ry. Co., Noy's Maxims, eh. 43, 92. 7 Exch. 714; Harrison v. Lond. Br. & {I) Beal V. South Devon Ey. Co., 5 S. Co. Ry. Co.,- ante, p. *754, over- H. & N. 875; 29 L. J. Ex. 441; Peek v. ruled by Peek v. North Staff. Ey. Co., North Staff. Ky. Co., 32 L. .7. Q. B. 241; 32 L. J. Q. B. 241. Leeson v. Holt, 1 Stark. 186. VOL. I. 49 769 * 543 CONTRACTS FOE SERVICES. [BOOK II. quences of his own misconduct or negligence, or from [* 543 ] the misconduct and negligence * of his .servants, and per- sons in his employ. (?i) " By understanding the terms of the notice in this limited sense," observes Bayley, J., "the com- mon carrier will be exempt from those peculiar liabilities which attach to him only in his character of common carrier, but not from the consequence of his own misfeasance, for which every bailee is responsible." (o) Having, by notice or special contract, divested himself of his customary liability of an insurer against robbery and fire and the dangers and accidents of the road, " he still," observes Parke, B., " undertakes to carry from one place to another, and for some reward in respect of the carriage, and is therefore bound to use ordinary care in the custody of the goods, and their conveyance to and delivery at the place of destination, and in providing proper vehicles for tlieir carriage." (fi) Where a cask of brandy of the value of £70 was accepted by a common carrier to be carried for hire, and the cask began to leak on the road, and the carrier's servant was told that tlie brandy was escap- ing, but he made no attempt to stop the leak and save the brandy at any of the stages at which he stopped, although he might easily have done so, and the brandy was consequently lost, it was held that the carrier was not protected from the consequences of the negligence of his servant by liaving given notice to the consignor that he would not be answerable for any goods of what nature or kind soever above the value of £5, if lost, stolen, or damaged, unless a special agreement was made and an adequate premium paid over and above the common carriage ; for here the goods were of large bnlk and known quality, and the value was ob- vious, as well as the degree of care reasonably requisite for their conveyance, {q) Void Limitations of Liability.^ — A person who undertakes the public employment of a common carrier of merchandise or of passengers and luggage has no more right, it is apprehended, to 1 See ante, p. * 541. American note. (n) Birket v. Wilkn, 2 B. & Aid. 461; Smith v. Home, 8 Taunt. 144; 2 356; Duff«. Budd, 6 Moore, 477, Moore, 18. (o) Garnett i). Willan, 6 B. & Aid. (q) Beck v. Evans, 16 East, 247; 57. Smith v. Home, 8 Taunt. 144; 2 Moore, (p) Wyld V. Pickford, 8 M. & W. 18. 770 CHAP. II.] CARRIERS. * 544 engraft upon his contract or employment the terms that "all merchandise. received by him to be carried is carried at the risk of the owners," or that "all luggage delivered to him by his passengers is carried at the risk of the passengers," and that " he will not be responsible if it is lost or damaged by the way," than a common innkeeper has to refuse to receive guests, except on the terms that he shall not be responsible for the safe keeping of their goods and luggage deposited in his inn. The consignor of merchandise or the passenger has a right to reject these terras, and to insist that merchandise, such as is * ordinarily carried by the common carrier, or the [*544] customary allowance of luggage for a passenger, shall be taken at the common carrier's risk, provided the consignor makes the declaration of value, and is ready to pay the premium of insurance in those cases where the declaration and payment are required by law. "The traveller," observes an American judge, " is under a sort of moral duress, a necessity of employing the common carrier ; and the latter shall not be allowed to throw off his legal liability. He shall not be privileged to make him- self a common carrier for his own benefit and a mandatary or less to his employer. He is a public servant, with certain duties defined by law ; and as Ashurst, J., said of the duties of inn- keepers, they are indelible." (r) But in our own law, where the carriage of particular articles is attended with any peculiar or extraordinary risk, the common carrier is entitled, as we have seen, to refuse to receive and carry such articles, unless the nature and value of the articles are declared, and an increased charge paid for insurance ; but he may at the same time receive and carry them under a special contract, providing that they shall be carried at the risk of the owner at a lower rate of charge {ante, p. * 540). And if he is a common carrier of passengers merely, and does not profess to carry, and does not receive for carriage, luggage with his passengers, but allows them to carry with them, under their own care, a small quantity of personal luggage, he is not responsible for the loss of it. (s) Where the carrier seeks to set up a special contract limiting his liability, he (r) Cowen, J., Cole v. Goodwin, 19 "Wend. 281; Hollister v. Nowlen, ib. 234; Angellon Carriers, App. xviii., xxiii. (s) See infra. in *545 . CONTRACTS FOR SERVICES. [BOOK II. must show that the terms of it have been brought to the con- signor's notice. The most frequent illustrations of this are to be found in the conditions printed upon luggage tickets, (t) ■where the luggage is left in the cloak-room, the railway com- pany being no longer carriers, but warehousemen. Where a passenger took a ticket in the form of a book of coupons, and inside the book was a condition limiting the responsibility of the company to their own trains, and the passenger was injured in France, the jury found that the condition was not brought to his notice, but it was held that the whole book was the con- tract, and was accepted by the passenger, and he was bound by the condition, (m) Loss of Passengers' Luggage by Rail^»"ay Companies. ' — The impossibility of travelling without the accompaniment of a cer- tain quantity of luggage for the personal comfort and conve- nience of the traveller, has led from the earliest tirues [* 545] to the practice, on the *part of the carriers of passengers for hire, of carrying, as a matter of course, a reasonable amount of luggage for the accommodation of the passenger, and of considering the remuneration for tlie carriage of such luggage as comprehended in the fare paid for the conveyance of the passenger. Under the older system of travelling, by stage-coaches, canal- boats, or other vessels, the amount of luggage to be thus carried free of charge was commonly made part of tlie contract by express stipulation or notice i'rom the carrier. Under the mod- ern system of railway conveyance, it is fixed and regulated by the various acts of parliament under which railways have been established. By these acts the right of the passenger is expressly limited to ordinary luggage, wliicli must be taken to mean the personal luggage of the traveller; and the amount 1 Whnt is baggage, and the liability therefor, see U. S. Dig. tit. llnilroad Com- panies; also ib. tit. Innkcrpcrs; 1 Abb. Dig. Corp. tit. liailrocids, 5(16-576; 2 ib. tit. Railroads, 1072-1096; Abb. L. Diet. Baggage: see further, Railroad Co. t>. Fraloff', 100 U. S. 24; Weeks v. New York, &c. R. R. Co., 72 ^T. Y. 50, 9 Hun, 669; Lin V. Terre Haute, &c. R. R. Co., 10 Mo. App. 125; Millard v. Missouri, &c. R. R. Co., 86 N. Y. 441. (0 See infra. (n) Burke v. S. E. Ry., 5 C. P. D. 1, distinguishing Henderson v. Stevenson, L. R. 2 H. L. So. 470. 772 CHAP. II.] CARRIEKS. * 546 which he is entitled to take free of charge is ascertained. "Whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the imme- diate necessities or the ultimate purpose of the journey, must be considered as personal luggage ; this would include not only all articles of apparel, whether for use or ornament, but also the gun-case or the fishing apparatus of the sportsman, the easel of the artist on a sketching tour, or the books of the student, and other articles of an analogous character, the use of which is per- sonal to the traveller, and the taking of which has arisen from the fact of his journeying, (x) On the other hand, what is car- ried for the purposes of business, such as merchandise or the like, (y) or for larger or ulterior purposes than those of the jour- ney, such as articles of furniture or household gx)ods, iz) will not come within the description of ordinary luggage, unless the company (with knowledge) choose to take without extra pay- ment that which is not ordinary luggage, in which case they will be responsible for the loss ; (a) so also upon any limit in point of weight, if the company choose to allow a passenger to carry more, they will be liable, (a) The liability of common carriers in respect of articles carried as passengers' luggage, is that of carriers of goods as distinguished from that as of carriers of passengers. Most of the Railway Acts provide tliat, without extra charge, it shall be lawful for every passenger by railway to take with him ordinary luggage or articles of clothing * of a certain weight and dimensions, and that the com- [*546] pany shall not be responsible for the safe carriage or custody of, or for any loss of or injury to articles carried upon the railway with, or accompanying the person of, or belonging to, any passenger, or delivered for the purpose of being carried, other than such passengers' articles of clothing. But these enactments do not prevent railway companies from running (x) Macrow v. Great Western Ey. Ex. 286; Belfast & Ballymena E}'. Co. Co., L. E. 6 Q. B. 612 ; 40 L. J. Q. B. v. Keys, 9 H. L. C. 556. 300 (z) Hudston v. Midland Ey. Co., (y) Cahill V. London & Korth-West- L. R. i Q. B. 366; 38 L. J. Q. B. 213. em Ey. Co., 13 C. B. N. s. 818; 81 {a) Great Northern Ky. Co. ■!). Shep- L. J. C. P. 271; Great Northern Ey. terd, 8 Exeh. 30; 21 L. J. Ex. 271. Co. V. Shepherd, 8 Exch. 30; 21 L. J. *546 CONTRACTS FOE SERVICES. [BOOK II. excursion trains for passengers only, without luggage, (b) If a railway company starts an excursion train for passengers merely, but allows each passenger to carry with him a small quantity of luggage free at his own risk, and passengers avail themselves of the privilege, and the luggage is lost, the company is not respon- sible for the loss of it. (c) Where a railway company made a by-law to the effect that they "would not be responsible for the care of luggage, unless booked and paid for,'' it was held that the by-law was null and void, (d) Eailway companies are responsible for the acts and omissions of their porters in the management and delivery of passengers' luggage, (c) But if a passenger packs merchandise in carpet-bags and portmanteaus, and passes it off as luggage, he cannot recover for the loss of it, as he is guilty of an unfair concealment towards the company, in preventing them from making the charge they would be entitled to make for the carriage of merchandise. (/) A railway company is in general liable for the loss of a passenger's luggage, though carried in the carriage in which he himself is travelling. ( ^ ) But the passenger must take ordinary care of it ; and, therefore, where the passenger left the carriage in which his luggage was, for another in the course of the journey, and his portmanteau was stolen, it was held that the company was not responsible. (Ji) Where the passenger retains his own personal control over the luggage, the company are no longer insurers of its safety, but are liable for negligence only, (i) Where luggage is received (J) Ramsey v. Nortli-Eastern Ey. (g) Le Conteur v. London & .South- Co., 14 C. B. N. s. 461; 32 Law J. C. P. Western Ey. Co., L. E. 1 Q. B. 54; 6 244. B. & S. 961; 35 L. J. Q. B. 40. (c) Stewart v. Lond. & N. "West. (h) Talley v. Great AV est. Ey. Co., Ey. Co., 33 L. J. Ex. 199; 3 H. & C. L. R. 6 C. P. 44; 40 L. J. C. P. 9" With 135. respect to luggage deposited in a cloak- (rf) Williams v. Gt. West. Ey. Co., room, see Burke v. S. E. Ey., L. E. 5 10 Exch. 15; JIunster v. S. E. Ey., 4 C. P. D. 1; 49 C. P. D. 107. C. B. N. s. 698. (j) Talley v. G. W. Ey., L. R. 6 (c) Mid. Ey. Co. v. Bromley, 17 C. P. 44; 40 L. J. C. P. 9; Bergheim 1). C. B. 875; 25 L. J. C. P. 94. Gt. Eastern Ey., 3 C. P. V. 221. See (/) Cahill V. Lond. & North-West, as to where luggage is in his control, Ey. Co., 13 G. B. K. s. 818; 31 L. J. Richards v. L. B. & S. C. Ry., 7 C. B. C. P. 271; 30 ib. 294; Belfast & Bally- 839; Kent v. Mid. Ry., L. R. 10 Q. B. mena Ey. Co. v. Keys, 9 H. L. C. 556; 1; 44 L. J. Q. B. 18; Mid. Ry. Co. v. Great Northern Ey. Co. v. Shepherd, 8 Bromley, 17 C. B. 372. Exch. 30; 21 L. J. E.x. 286. 774 CHAP. II.] CARRIERS. * 547 as luggage of a servant, but it turns out to be the master's, who is following by another train, the company are not liable for the *loss. (k) Upon the arrival of the passenger at [*547] tlie station, the company must deliver his luggage on the platform, allowing him a reasonable time to come and receive it. (l) If a railway porter, at the request of a passenger, calls a cab, and places the passenger's luggage on a cab, and there leaves it, and comes away without having the means of identifying the vehicle, and the cab-driver goes off with the luggage before the passenger has taken his seat in the vehicle, the rail- way company will be responsible for the loss, (m) Passengers' luggage is within sect. 7 of the Eailway and Canal Traffic Act. {n) Charge for Luggage by I!:zcursiou Trains. — Where a -passenger by an excursion train, knowing that the railway company did not allow passengers to carry luggage by such trains, neverthe- less secretly put luggage into the tmin, it was held that the law would imply a promise from the wrong-doer to pay the company for the carriage of it. (o) When a Declaration of Value is a Condition precedent to £iny Liability on the part of the Common Carrier. — The act, it will be observed, applies solely to common carriers by land. Where, however, the contract for carriage is divisible, and applies to car- riage partly by water and partly by land, and the loss occurs during the carriage by land, the carrier is entitled to the benefit of the statute ; (p) and where the contract is to carry by land and sea also, it is divisible, so as to afford a defence to the car- rier if the loss in fact occurs during the carriage by land, (q) The effect of the act is to prevent the owner or consignor from recovering from the common carrier the value of any of the enumerated articles when the value of the contents of the parcel or package in which they are enclosed exceeds £10, and the (k) Beeeher v. G. E. Ey., L. E. 5 Q. (») Cohen v. S. E. Ey., 2 Ex. D. B. 241; 39 L. J. Q. B. 122. 253; see post, p. * 560. (0 Patscheider v. G. W. Ey., 3 Ex. (o) Eumsey v. N. E. Ey., 32 L. J. D. 153. C. P. 245; 14 C. B. S. 641. (m) Butcher v. Lond. & South-West. (p) Baxendale v. Gt. Eastern Ey Co., Ry. Co., 16 0. B. 13; 24 Law J. C. P. ante, p. *538. 137; Eiehards v. London, Brighton, & (q) Le Conteur v. Lond. & South- South Coast Ey. Co., 7 C. B. 839. West. Ey. Co., ante, p. *546. 775 * 548 CONTRACTS FOE SERVICES. [BOOK II. value has not been declared, and the increased rate of charge paid by the consignor pursuant to the statute. The declaration of value must be made by the consignor, whether the common carrier has or has not a notice or tariff of charges for the in- creased risk of conveyance of such articles stuck up in his office, and whether the articles are delivered at the office of the com- mon carrier, at the sender's house, on the road, or anywhere else. The act requires the person who sends tlie goods to take the first step, by giving that information which he alone can give, and if he does not take that first step, then he cannot maintain an action for the value of the lost article by reason of [*548] the * first section of the statute, which expressly says that the common carrier shall not be liable unless the declaration is made, (r) As soon, however, as this has been done, the common carrier is entitled to demand and to have an increased rate of remuneration, which is in the nature of a pre- mium for insurance, provided he has a tariff or notice posted in his office of the sums he charges above the usual rate of charge for the carriage of the articles. If there is no tariff, he has then no right to charge the increased rate, and he loses (pi'ovided the declaration of value has been duly made by the consignor) the protection of the act. (s) The declaration of value having been made, the common carrier has no right to know the exact nature of the contents of the parcel, unless he has reason- able grounds for believing that it contains articles of a dangerous character, (t) And if, after the declaration has been made, he receives the goods without demanding an increased rate of charge, he is not protected by the statute, (m) However, the mention of the value incidentally is no declaration of value within the statute, (x) By -whom the Declaration of Value is to be made and the In- creased Rate of Carriage paid. — In a case before Lord Ellen- borough, before the passing of the Common Carriers' Act, it was (r) Pianciani v. Lend, and South- Ey. Co., 14 C. B. 295; 23 Law J. C. P. West. Ey. Co. 18 C. B. 226. 73; see ante, p. »525. (s) Baxendale v. Hart, 21 Law J. (it) Behrens v. Gt. North. Ry. Co., Exch. 123; 6 Exch. 789. 31 Law J. Exch. 299; 30 ib. 153. (0 Crouch V. Lond. & North-West. {x) Robinson v. South-West. Ry. Co., 34 Law J. 0. P. 234. 776 CHAP. II.] CARRIERS. * 549 held that where a tradesman at Gosport received an order in writing for goods to be forwarded to Plymouth, he had an im- plied authority to do all that was necessaiy to be done to insure them a safe conveyance ; and therefore, that when it was neces- sary to declare their value, and pay an increased charge for insurance, it was his duty to make the declaration and the pay- ment, so as to enable the consignee, in case of loss, to secure his indemnity from the common carrier ; (y) but the limitation of the liability of common carriers in i-espect of the carriage of glass, china, and the articles mentioned in the Carriers' Act, being now established by act of parliament, must be taken to be known to consignees and consignors alike throughout the king- dom ; and it is not the practice, nor, it is apprehended, is it in general the duty, of the consignor to pay the carriage and insure articles directed to be forwarded by his customers, unless he re- ceives express directions so to do. (z) If, indeed, the articles are of an extremely fragile character, and likely to be damaged with- out great care, or if they are of unusual value, it would be the duty of the consignor to declare their nature *and [*549] value to the common carrier, that proper care might be taken of them (ante, p. * 534) ; and it would be prudent for the consignor, before forwarding goods of this description, to require instructions from the consignee as to the insurance of them. Articles to which the Statute extends, (a) — The statute ex- tends to all the articles enumerated in tlie first section, although not within the words of the preamble, " an article of great value in a small compass." It is not sufiicient for the owner to describe in writing on the outside of a parcel or box the nature of the contents. The carrier must have distinct information thereof, and an opportunity of demanding the increased rate of carriage, (b) Hat bodies made of felt, which is a substance com- posed partly of the soft fur or down of the rabbit detached from the skin, and partly of the wool of sheep, have been held not to be " furs " within the Common Carriers' Act, (c) but dresses of {y) Clarke v. Hutchius, 14 East, 476. (S) Owen v. Burnett, 2 C. & M. 353; (2) Coshay v. Tute, 3 Oampb. 129; 4 Tyr. 133; Boys «. Pink, 8 C. & P. Bailey 1). Sweeting, 9 C. C. N. s. 857. 361. (a) See also the notes to the section, (<;) Mayhew v. Nelson, 6 G. & P. 58. ante, p. * 537. 777 * 550 CONTRACTS FOR SERVICES. [BOOK II. silk made up for use are silks within the operation of the act ; {d) and " silk web," which is composed one third of silk and two thirds of cotton and india-rubber, as being " wrought up with other materials," is also within it. («) By the term " writings '' is meant writings of value, and therefore an instrument in writ- ing in an imperfect state, intended to secure a large sum of money, but not being a valid and complete security at the time of the loss, is not within the statute. (/) If the contents of a parcel or package exceeding £10 in value are of a miscellaneous character, consisting partly of enumerated articles and partly of things not mentioned or comprised in the act, the common car- rier is released from all liability in respect of the former, but as regards the latter, his common law liability remains the same as before the passing of the statute. Thus if a trunk containing linen and wearing apparel, jewelry and trinkets, exceeding £10 in value, be delivered to a carrier to be carried for the ordinary hire, or to accompany the person of a passenger, and such trunk is lost by the way, the carrier is not liable for the value of the jewelry and trinkets,(y) but he remains responsible for the value of the trunk and linen and wearing apparel, as at common law before the passing of the act. If, however, the contents of the parcel or package consist entirely of the enumerated articles, the common carrier is by tlie express teims of the act freed from all responsi- bility and liability in respect of the loss thereof, if the [ * 550 ] * consignee has not declared the nature and value of the article, and paid or agreed to pay the increased charge specified in the notice, although the loss may have been occa- sioned by the grossest negligence. (A) If an uninsured parcel or package consists entirely of enumerated articles, the plaintiff would not be entitled to recover even the value of the box or case in which they are contained, (i) but if there are articles in it to which the statute does not apply, he would, {k) (d) Bernstein v. Baxendale, 6 C. B. act, spc Smith v. LonJ. & Brighton Ey. N. s. 259; 28 Law J. C. P. 265, overrul- Co., C. B. 789. ing Davey v. Mason, Car. & N". 50. (rj) Bernstein v. Baxendale, supra. (c) Brunt v. Mid. Ey. Co., 33 Law J. (h) Hinton v. Dibbin, 2 Q. B. 6i6. Exch. 187; 2 H. & C. 889. (,) Wyld v. Pickford, 8 M. & W. (/) Stoessigeri). South-East. Ey. Co., 462. 23 Law J. Q. B. 293; as to pleading the {Tc) Treadwin v. Gt. East. Ey. Co., L. 778 CHAP. II.] CAKEIEKS. * 551 If the consignor, after he has made the declaration of value, objects to pay the ad valorem rate of carriage or premium of insurance, and wishes to have the parcel carried as a parcel of ordinary value, at the ordinary rate of carriage for parcels of sim- ilar bulk and weight, the carrier may, if he pleases, waive his right to the increased remuneration or premium of insurance, and agree to carry for a smaller sum, upon the terms that he is not then to be responsible upon the customary liability of a common carrier, as an insurer against robbery and the dangers and acci- dents of the road. " This limitation," observes Parke, B., " it is competent for a common carrier to make, because, being entitled by common law to insist on the full price of carriage being paid beforehand, he may, if such price be not paid, refuse to carry upon the terms imposed by the common law, and insist upon his own terms." (/) And if after the declaration has been made the carrier receives the parcel without demanding the increased rate or charge, he receives it as an insurer of its safe conveyance ; and the same result follows if he has failed to notify his in- creased rate of charge in accordance with the terms of the statute, (to) Losses covered by the Statute. — The term " loss '' in the stat- ute means loss of things by the carrier or his servants, in the course of the carriage of them, either by losing them from their vehicles, or mislaying them, so that it was not known where to find them when they ought to have been delivered ; and not the loss that may be sustained by an owner or consignee by reason of the non-delivery of the chattel in due time, or by reason of gTeat delay in its delivery, whereby the use of the chattel, or the means of turning it to advantage, were lost. («) Loss of Goods from Theft by tho Common Carrier's Servants. — Nothing contained in the Carriers' Act is, as we have seen (sect. 8), to protect any common carrier for hire from liability to answer for * loss of or injury to any goods [*551 ] or articles arising from the felonious act of any servant R. 3 C. P. 308. A framed picture is one (m) Behrens v. Gt. North. Ky. Co., entire thing, and cannot be divided so 6 H. & N. 366; 30 Law J. Exch. 153. as to charge the carrier for the loss of (n\ Hearn v. Lond. & South- West, the frame. Henderson v. L. & N. W. Ry. Co., 10 Exch. 801; 24 Law J. Exch. Ry., L, R. 5 Exch. 90. 180. (I) Wvld V, Pickford, supm. 179 * 551 CONTRACTS FOR SERVICES. [BOOK II. iu the carrier's employ. If, therefore, the common carrier relies upon the statute as a defence, contending that there ought to have been, and that there was not, any declaration of value on the part of the consignor, of the article alleged to have been lost, the defence is rebutted, and the case taken out of the operation of the statute, by showing that the loss arose from the felonious act of the carrier's servant, (o) When the goods have been accepted by a carrier under a special contract for the carriage of them, the statute does not apply. Where, therefore, a common carrier has given express notice to the consignor that he will not be responsible for parcels or packages above the value of £10, unless the value is declared, and an increased rate of remuneration paid according to a printed tariff or scale of charge, and the common carrier afterward accepts a parcel to be carried, knowing it to be worth more than £10, without demanding or receiving the premium for insurance, and the parcel is purloined by his own servant, he is not necessarily responsible for the theft, {p) Having received the goods under a special contract, and not upon his customary liability as an insurer of safe conveyance, he is chargeable only for negligence and want of ordinary care. The loss by theft indeed is prima facie proof of negligent keeping, but it is not absolutely conclusive, and the carrier may exoner- ate himself from liability for the theft by proving his own care and watchfulness, and showing that there was no want of any proper precaution on his part to guard • against theft by his ser- vants. " If the consignor," observes Lord Tenterden, " has con- cealed the value of the parcel from the carrier, and has adopted a disguise for it likely to prevent the carrier from taking any particular care of the parcel, and yet not so completely conceal- ing its nature as to prevent it from being selected for depreda- tion by a dishonest servant, and the loss is the consequence of the means he has adopted, then he cannot maintain an action in respect of the loss." ( q) In order to establish the fact of theft by the common carrier's (o) Metcalfe v. London & Brighton C.B. 140; Gt. West. Ry. Co., v. Eimell, Ry. Co., 4 C. B. n. s; 307; 27 Law J. 27 Law .T. P. P. 204. f- P- 205. {q) Bradley ti. Waterhouse, M. & M. (p) Butt V. Gt. West. Ry. Co., 11 154. 780 CHAP. II.J MASTEE AND SERVANT. * 552 servants, it is not enough that there is a greater degree of proba- bility that the carrier's servants took their goods than that a stranger took them by reason of their greater facility of access and opportunities of stealing them, (r) It is not necessary, how- ever, to show that some particular servant has committed a felony; it is * sufficient if some evidence is given [*552] which raises a prima facie case that the goods were stolen by some or one of the carrier's servants, (s) All persons who are actually, though casually and incidentally, employed by the common carrier in doing the work of carrying, are the servants of the latter, although they may be the regular servants of some other persons, receiving wages from them and not from the carrier, {t) Liabilities of the Common Carrier's Servants. — ■ Sect. 8 of the statute provides that the act shall not protect the coachman, guard, book-keeper, or other servant of the common carrier from liability for losses or injuries occasioned by their own personal neglect and misconduct. This applies to liabilities ex delicto; for the coachman, guard, or other servant is not by the common law liable in any way ex contractu to the owner of the goods for loss or damage arising from his own personal negligence. The contract for the carriage of them is made with the common carrier or coach-proprietor who carries on the business, and not with a mere servant or agent, who has no interest in the concern, and does not share in the profits of the trade. Thus where an action was brought against a coach-porter for the value of a par- cel lost by him, and also against the driver of a stage-coach for the loss of a trunk, it was held that as the defendant in each case had received the article as the servant and agent of the coach-proprietor, and not on his own account, he could not be sued by the owner of the goods for the loss, (m) Losses occasioned by the Negligence of the Consignor — Defective Packing. — If the loss has been occasioned by the neg- ligence of the consignor or his servants in not properly packing (r) McQueen v. Great "Western Ry. [t) Machu v. Lond. & South- West. Co., L. E.. ]0 Q. B. 569. Ry. Co., 2 Exch. 426. (s) Vaughton v. London & North- (u) Cavanagh v. Such, 1 Pr. 331; Western Ry. Co., L. R. 9 Ex. 93. WiUiams v. Cranston, 2 Stark. 82. 781 *553 CONTRACTS FOE SERVICES. [BOOK II. or securing the goods, the carrier is not responsible for the loss. If wine or spirits escape by reason of a defective bung in a cask, the carrier will not be answerable, {x) unless it be shown that the carrier had notice of the leakage, and had the means of stop- ping it, and neglected to do so, and that by reason thereof the plaintiff sustained the injury of which he complains, (ij) If the defective packing of goods is patent and visible, and easily rem- edied, and the common carrier accepts the goods for conveyance, he is bound to take all reasonable means to provide for their safety, {z) But if the mode of packing is that in ordinary use, and the carrier is led by the sender's conduct to con- [ * 553 ] elude that it is safe, the * carrier, at any rate if he is not a common carrier, will not be responsible for injury to the goods arising from such packing, (a) A common carrier is liable as an ordinary bailee for negligence, and he is liable for a loss occasioned by negligence, even though tlie act of God or of the Queen's enemies conduces to the loss. He is also liable as an insurer for losses which occur through no negligence on his own part ; but, like an insurer, he is not liable for accidents happening through the iidierent vice of the thing carried. (5) Thus a common carrier is not liable for the loss of the goods carried arising from their inherent tendency to decay or ignite, (c) Nor is he liable for injury to animals, the result of some vice which, by its own internal development, affects the animal without any default nor negligence of the carrier, (d) Eailwray and Canal Act — Inability of Railway, Canal, and Steamboat Companies to exonerate themselves from Liability for their owrn Neglect, Default, or Breach of Duty by Notice, Con- dition, or Declaration. — By sect. 7 (e) of the Eaih^'ay and Canal Traffic Act, 17 & 18 Vict. c. 31, — which by 31 & 32 Vict. c. 119, [x) Hudson V. Baxendale, 2 H. & N. Rhol v. Parr, 1 Esp. 444; Boyd v. Du- 575. bois, 3 Campb. 133. (y) Beck v. Evans, 16 East, 244. {d) Blower v. Gt. West. By. Co., (z) Stuart V. Crawley, 2 Stark. 324. L. R. 7 C. P. 655; 41 L. J. C. P. 268; (a) Richardson v. North-Eastern Ey. Kendall v. London & South-Western Co., L. R. 7 C. P. 75; 41 L. J. C. P. Ry. Co., L. R. 7 E.x. 373; 41 L. J. Ex. 60. 184. (i) Blower ». Great Western Ry. Co. , (e) See Baxendale v. Gt. Eastern Ry. infra. Co., L. R. 4 Q. B. 254. (c) Alston V. Herring, 11 Exoh. 822; 782 CHAP. II.] CARRIERS. * 554 sect. 16, extends, so far as its provisions are applicable, "to steam vessels and to the traffic carried on thereby," — every railway company and canal company is made liable for the loss of, or for any injury done to, any horses, cattle, or other animals, or to any articles, goods, or things in the receiving, (/) forwarding, and delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in any wise limiting such liability ; every such notice, condi- tion, or declaration being thereby declared to be null and void. But it is provided that nothing therein contained shall be con- strued to prevent the said companies from making such condi- tions v^ith respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things, as shall be adjudged by the court or judge before whom any question relat- ing thereto shall be tried, to be "just and reasonable, {g) and that they shall not be liable to a greater extent than certain sums named in the section for injuries to horses, cattle, &c., unless the sender has declared them to be of * greater [*554] value at the time of delivery, and paid an increased charge accordingly. Where an act of parliament authorized a railway company to make regulations respecting passengers' luggage, and the com- pany by their regulations required the passengers to see their luggage marked with the company's labels, and stated that the company would not be responsible for the loss or detention of any article of luggage not so marked and properly addressed, and the plaintiff, who was a passenger, required the company's porter to label and take into the luggage-van some wearing apparel wrapped in a shawl and properly addressed, and the porter refused, as the company had made it a rule not to label shawls, it was held that the company was responsible for tlie porter's refusal to receive the shawd, and that the company could not make regulations having the effect of divesting them of their (/) As to when a horse is "re- (g) As to the construction of this ceived," see Hodgman v. West Mid. section, see Peek v. North Staff. Ey. Ry. Co., 35 L. J. Q. B. 85; 6 B. & S. Co., post, p. *556. 660. 783 * 555 CONTRACTS FOR SERVICES. [BOOK 11. common law liability to receive and carry the article as jjersonal luggage. (A) In cases vrhere railway companies under the Carriers' Act or the Eailway Traffic Act are entitled to receive an increased rate of charge for insuring the safe conveyance of particular articles, and the consignor objects to the increased rate of charge, and it is agreed that the company shall receive and forward certain articles uninsured, this may be taken as doing away with their common law liability as insurers of the safe conveyance of the articles, but does not exempt them from responsibility for losses by negligence through their own default, (k) e. g. for delay in not forwarding the articles. Q) If goods are accepted for conveyance under a special contract, whereby the carrier exempts himself from liability for loss or damage of a particular character, such as leakage or breakage, this will not exempt him from responsibility if the leakage or breakage has been caused by his own negligence, or the negli- gence of his servants in storing the goods, (m) And the rule is the same where the suit is brought in the Court of Admiralty against the vessel, {n) It makes no difference that the contract was made with another person, if the plaintiff's goods were law- fully in the possession of the defendants, and were lo.st or injured through their negligence, (o) Where the plaintiff's goods on board ship were injured by oil during the voyage, and it was shown that there was no oil amongst the cargo, but that [*555] there were two donkey-engines * on board, in which oil was used, and which were near the plaintiff's goods, it was held that this raised a presumption of negligence against the owners of the vessel, (jp) Special Contracts with Railway and Canal Companies for the carriage of Goods and Chattels. — By the Eailway and Canal (A) Munster v. South-Eastcrn Ey. P. 168; 2 C. B. N. s. 163; M'Manus t'. Co., 4 C. B. N. s. 676; 27 Law J. C. P. Lane. & Yorkshire Ry. Co., infra. 312. («) Ohrloffv. Briscall, L. E. 1 P. C. (k) Peek v. North Staff. Ey. Co., 10 Ca. 231. H. L. C. 473; 32 Law J. Q. B. 211. (o) Martin o. Gt. Indian Peninsular (/) Robinson v. Gt. Western Ry. Co., Ey. Co., L. R. 3 Exch. 9. 35 L. J. C. P. 123. (;,) Czech v. Gen. Steam Nav. Co., (m) Phillips V. Clark, 26 Law J. C. L. R. 3 C. P. 14 784 CHAP. II.J MASTER AND SERVANT. * 555 Traffic Eegulation Act (17 & 18 Vict. c. 31), it is further enacted by the same section (sect. 7) that no special contract between any railway or canal company and any other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things, shall be binding upon or affect any such party unless the same be signed by him, or by the person delivering such animals, articles, goods, or things respectively, for carriage ; but nothing therein contained is to alter or affect the rights, privileges, or liabilities of any such company, under the 11 Geo. IV. & 1 Win. IV. c. 68, with respect to articles of the description mentioned in that act. Special contracts with railway and canal companies, therefore, for the carriage of merchandise and chattels, are placed under the control of the judges, so that the conditions imposed by the contract must be just and reasonable ; and no condition, however just and reasonable, can protect the com- pany, unless it be contained in a contract signed in accordance with the statute, {q) But no special contract signed according to the statute is necessary to define the nature and extent of the public profession of the common carrier and of the duties he undertakes in favor of the public at large ; (r) and a contract not signed is valid as against the company, (s) Before the statute, every case in which a special limited lia- bility was substituted for the general common law obligation of the carrier, whether by notice acquiesced in or document signed by the customer, was one of special contract, and the statute is to be construed with reference to that state of the law ; so that every notice, condition, and declaration under the statute, how- ever reasonable, must be made in writing, and be signed in the mode provided by the statute, in order to be binding in law upon the person sought to be affected by it. {t) If a man has an oppor- (q) Peek v. North Staff. Ry. Co., (r) Ante, p. * 525. 10 H. L. C. 473; 32 L. J. Q. B. 241; (s) Baxendale v. Great Eastern Ry. Aldridge v. Gt. West. Ry. Co., 15 C. Co., L. R. 4 Q. B. 244, 251; 38 L. J. B, N. s. 582; 33 L. J. Q. B. 161; All- Q. B. 137. day V. Gt. West. Ry. Co., 34 L. J. (0 M'Maniis v. Lane. & York. Ry. Q. B. 5; 5 B. & S. 903; Lend. & Co., sitpra; Peek «. North Staff. Ry. Co., North-West. Ry. Co. v. Dunham, 18 ulsvp.; Simons t). Gt. West. Ry. Co., C. B. 829; McManus i>. Lane. & York. 18 C. B. 826; 26 Law J. C. P. 25; Ry. Co., 4 H. & N. 335; 28 L. J. Ex. Beal v. South Dev. Ry. Co., 5 H. & N. 359. 886. VOL. I. 50 785 * 556 CONTEACTS FOE SEEVICES. [BOOK II. tunity of reading the conditions, and chooses to sign [*556] them without * reading them, he is nevertheless bound by them if they are reasonable, (m) But the act does not apply to traffic beyond the company's own lines or canals, so that a condition printed on a passenger's through ticket from Loudon to Paris, that the company would not be responsible for loss, &c., except on the company's own lines, is valid, although not signed by the passenger, (x) ■What are Unjust and Unreasonable Conditions in Special Con- tracts for the Carriage of Chattels by Railway or Canal. — The reasonableness or unreasonableness of the condition made by the company with respect to the receiving, forwarding, and deliver- ing of goods and chattels, will materially depend upon the nature of the articles to be conveyed, the degree of risk attend- ant upon their conveyance, the rate of charge made, and whether the railway company was bound by the common law or by statute to carry the articles on being paid the customary hire, or whether it was in its power to reject them altogether and refuse to carry them upon any terms, {y) Whenever, in order to bring a railway or canal company within the protection of a condition or special contract, it is necessary to construe it as excluding responsibility for losses occasioned by the company's negligence and misconduct, the condition or special contract is unreasonable and unjust, and therefore void, unless an option is given to the customer to have the goods carried on tlie ordinary terms, at the ordinary rate. (.:) Where the terms of the condition are uncon- ditional, and would if valid protect the company even in the case of the wilful misconduct of the defendant's own servants, the condition is unreasonable, {a) Where the plaintiff sent a («) Lewis V. Gt. We.st. Ky. Co., 5 Brighton, & S. C. Ry. Co., 31 Law J. H. & N. 874; 29 Law J. Exch. 42,i. Q. B. 113. (x) Zunz V. South-East. Ry., L. R. (;) Peek v. North Staff. Ry. Co., 4 Q. B. 539. supra: Lloyd v. Watei-ford & Lira. Ry. {y) PardiDgton v. South Wales Ry. Co., 15 Jr." Com. Law Rep. Q. B. 37; Co., 1 H. & N. 396; Simons v. Gt. Allday ii. Gt. Western Ry. Co., mpra] West. Ry. Co., 18 C. B. 805; Garton v. Rooth v. The North-Eastern Ry. Co., Brist. & Ex. Ry. Co., El. B. & El. L. R. 2 Ex. 173; 36 L. J. Ex. 83. 112; 30 Law J. Q. B. 273. As to what (a) Ashendon v. L. B. & S.' C. Ry., is a reasonable percentage charge on 5 Ex. D. 190, where Harrison «. L. B. declared value, see Harrison v. Loud., & S. C. Ry. is said to he overruled by Peek V. N. S. Ry., supra. 786 CHAP. II.] CARRIERS. * 557 COW and a beifer by the defendants' railway, and signed a cattle ticket, on the l;ack of which were conditions that the company were to be free from all risk with respect to any loss or damage arising in tlie loading, transit, &c., or from any other cause what- ever, and the owner was required to see to the efficacy of the wagons, and make complaint in writing before the wagon left the station, and the cow fell out of the truck, it was held that the whole of these conditions were unreasonable, as they showed a determination not to be held liable for any loss what- ever ; but conditions may * some of them be reasonable [ * 557 ] and some not ; and the plaintiff will be bound by those which are reasonable, (b) And where a railway company re- ceived goods to be. carried under a condition absolving them from all liability for the loss of or damage to goods insufficiently or improperly packed, marked, directed, or described, the condi- tion was held to be unreasonable and unjust, as insufficient pack- ing, marking, or directing, &c., of goods constituted no sufficient ground for relieving the company from all liability respecting the performance of the duty they had undertaken to fulfil, (c) Every stipulation or condition professing to exempt a railway company or canal company from liability for its own negligence or misconduct, or that of its servants and agents, is unjust and unreasonable. " It is impossible," justly observes Lord Ellen- borough, " without outraging common sense, to allow carriers to say : ' We will receive your goods, but we wiU not be bound to take any care of them, and will not be answerable at all for any loss occasioned by our own misconduct, be it ever so gross and injurious.' " (d) Where horses were delivered to be forwarded by a cattle- truck from Liverpool to York for reward, and the owner was required to sign a ticket containing a memorandum to the effect (b) Gregory v. West Mid. Ry. Co., 2 Ey. Co. u. Dimliam, supra; Carton v. H. & 0. "951 ; 33 L. J. Ex. 155 ; The Bristol & Exeter Ey. Co., 1 B. & S. McCance t'. L. & N. "W. Ky. Co., 31 U2; 30 L. J. Q. B. 273. L. J. Ex. 65; Simons v. Gt. West. Ey. (d) Lyon v. Mells, 5 East, 438; Ld. Co., ante, p. *655; see however, per Wensleydale in Peek v. Nortli Staff. Martin r', Kirby v. G. W. Ry. Co., 18 Ey. Co., 32 Law J. Q. B. 274; Allday L. T. 658. "■ Gt. West. Ey. Co., 5 B. & S. 903; (c) Simons v. Gt. West. Ey. Co., 34 L. J. Q.B. 5; andseea»w;(;, pp. *535, anie, p. *555; Lond. & North-West. «653. 787 * 558 CONTRACTS FOE SERVICES. [BOOK II. that the ticket was issued subject to the owner's undertaking all risk of conveyance, loading and unloading, as the company would not be responsible for any injury or damage, however caused, occurring to live stock travelling upon the railway, or in their vehicles, and the defendants' servants provided a truck wl>ich, in external appearance, and so far as the defendants' servants knew, was sound, and sufficient for the conveyance of tlie horses, but it was, in fact, unsound, and of insufficient strength for tlie purpose, and a hole was made in tire bottom of the truck during the journey, and one of the horses got his leg through the liole and was injured, it was lield that the railway company was responsible for the damage done to the horse, notwithstanding the terms of the special contract signed by the owner of the horse. " We are of opinion," observes the court, " that the con- dition or special contract in this case is not just and reasonable. In order to bring tlie defendants within its protection, it is ne- cessary to construe it as excluding responsibility for loss occa- sioned not only by all risks of whatever kind directly [*558] incidental to the transit, but also for that * caused by the insufficiency of the carriages provided by the de- fendants, though occasioned by their own neL;ligence or miscon- duct. The sufficiency or insufficiency of the vehicles by which the companies are to carry is a matter, generally speaking, which they, and they alone, have the means of fully ascertain- ing ; and it would be unreasonable and mischievous if they were to be allowed to absolve themselves from the consequence of neglecting to perform properly that which seems naturally to belong to them as a duty. It is unreasonable that the company should stipulate for exemption from liability for the consequences of their own negligence, however gross, or misconduct, however flagrant; and that is what the condition under consideration professes to do. That condition is therefore void, and the case stands simply upon the ground that the plaintiff has employed the defendants to carry his horses safely, and that they have used an insuiUcient and improper vehicle for that purpose, whereby the horses have been injured." (e) A stipulation that (e) M'Mamis V. Lane. & Yorkshire West. Ey. Co., 7 H. & N". 477; 31 Law Ry. Co., 4 H. & N. 327; 28 Law J. J. Exoh. 65. Exch. 353; M'Cance v. Lond. & North- 788 CHAP. II.] CAREIEES. * 559 goods shall be carried " at owner's risk " only exempts the com- pany from the ordinary risks incurred by goods iu going along the railway, and does not cover injury from delay caused by the negligence of the company. (_/) The court is bound to look at the particular matter in each case, to see whether the condition is reasonable or not ; and it has been held that a condition which seeks to relieve a railway company from the consequences of the loss or non-delivery of goods, by reason of insufficient or improper package, is not rea- sonable ; {g) and if the condition is framed without limitation or exception, so as to exempt the company from ail responsibility for injury, however caused, it will be void, as being neither just nor reasonable. (7i) It is the duty of every railway or canal wjmpany setting up a condition iu qualification and restriction of their common law liability to make out that the condition is just and reasonable; and if they make an extra charge for insuring the safe convey- ance of live animals, they must show that the extra charge is reasonable and just, (i) It was held that where there was a contract that goods were to be carried "at owner's risk," the railway company were re- sponsible * for delay in delivery, although a lower charge [ *559 ] than usual was made, (k) But \ihere there was a similar contract, but the eompanj'- were to be liable for the wilful mis- conduct of their servants, the company were held not responsi- ble, there being no wilful misconduct, and that the contract was reasonable. (Z) Where the company were not to be liable in. respect of any loss or " detention," except by wilful misconduct, it was held that a purposed detention througli a negligent mis- take in supposing the carriage had not been paid, although not (/) Robinson v. Great Western Ry. (t) Harrison v. Lond. Br. & S. C. Co., 35 L. J. C. P. 123; D'Arc ». Ijan- Ky. Co., Carton v. Brist. & E.x. Ry.. don & North-Western Ry. Co., L. R. 9 Co., Peek o. North Staff. &c., ante, p. C. P. 32.). * 656. (.(/) Simons v. Gt. West. Ry. Co., 18 (k) D'Arc u. L, & N. W. Ry. Co., 9 <". B. 830; 26 Law J. C. P. 25; LJ. C. P. 325, ante. Wensleydale, Peek ». North Staff. Ey. (I) Lewis c. G. W. Ry., 3 Q. B. D. Co., supra. 195; see Gordon v. Gt. Western Ry., 8 (h) Peek V. North Staff. Ry. Co., Q. B. D. 44. a/ite, * 556; Gregory ». West Mid. Ey. Co., 33 Law J. Exch. 155. 789 * 560 CONTKACTS FOE SERVICES. [BOOK II. amounting to wilful misconduct, was a "detention" for which the company was liable, (m) What are Just and Reasonable Conditions. — It has been held that a condition that all claims for loss or damage should be made within seven days after the time when the goods have been delivered is just and reasonable ; (m) also a condition that a rail- way company will not undertake to forward goods by any par- ticular train, or be answerable for their non-anival in time for any particular market ; (o) and that they %\ill not be responsible, under any circumstances, for loss of market or other loss or injury arising from detention of trains, exposure to weather, stowage, or from any cause whatever other than gross neglect or fraud ; (p) or that they will not be resp(.)nsible for the risks attend- ant upon the carriage by railway of perishable articles, live ani- mals and chattels, such as accidents occasioned by the fright or restiveness of horses, or from the wheel of a carriaije taking fire; (q) or loss arising from delay in forwarding fish, where it is impossible to know the exact condition of the fish at the time of its delivery to be carried, and where the slightest delay in its transmission may occasion a vast loss ; (r) or to loss or damage to fragile materials, such as statuary or sculptured marbles, not occa- sioned by the negligence of the company or its servants, (s) If the company offer the consignor a lona fide practical choice, either to have his goods carried in the \isual way, at a reasonable rate, or at his own risk at a lower rate, and he elects the latter, the condi- tion is not unreasonable, {t) A condition annexed to a [ *560] contract for the carriage of meat that the * company will not be responsible for loss of a market, is reasonable, (w) (m) Gordon t. G. W. Ey. Co., 8 Q. (p) Deal v. South Bev. Ey. Co., 3 B. 44. If the defendants intended to H. & C. o37. say that they were not to be liable for {q) Austin v. Manchester Ry. Co., 10 .'•ueh "detention," tlien the condition C. B. 47.1. was unreasonable. (r) Beal v. South Devon Ey. Co., (n) Lpw-is V. Gt. AVest. Ey. Co., 29 .v»;>,ti .■ 'Wren v. East. C. Ey. Co., 35 L. J. E.x. 425; 5 H. & N. 867. Law T. R. (). B. 5. (o) Beal ... South Dev. Ey. Co., 5 (.s) P.-ek v. North Staff. Ey. Co., H. & N. 87.'.; 29 L. J. Ex. 441; White ante, p. *5ai>. V. Gt. West. Ey. Co., 2 C. B. n. .<:. 7; (/) Blackburn, J., ib.; Lewis v. G. 26 L. J. C. P. 158; Lord v. The Mid- W. Ry. Co., siqn-a; Brown v. M. S. & land Ey. Co., L. R. 2 C. P. 339; 36 L. Ey. Co., 9 Q. B. D. 230. L. .1. C. P. 17U. 790 (») Lord V. Midland Ey. Co., L. R. 2 C. P. 339. CHAP. II.] CAEElEES. * 560 The 17 & 18 Vict. c. 31, sect. 7, is extended by the 26 & 27 Vict. c. 92, aud 31 & 32 Vict. c. 119, sect. 16, to steam-vessels em- ployed by railway companies, as auxiliary to their line of rail- way, and to the traffic carried ou by means of such steam- vessels. It applies to passengers' luggage (w), but not to goods received by the company for safe custody, and not for carriage, (x) Nor does it apply to a contract exempting a company from lia- bility for loss on a railway not belonging to or worked by the company, (y) The 34 & 35 Vict. c. 78, sect. 12, applies where the carriage is by a vessel not belonging to nor worlced by the company. («) laability of a Railway Company during Sea Transit. — When a railway or canal company contracts by through booking to carry any animals, luggage, or goods from place to place, partly by rail- way and partly by sea, or partly by canal and partly by sea, a condition exempting the company from liability for any loss or damage which may arise during the carriage by sea of such ani- mals, luggage, or goods from the act of God, the king's enemies, fire, accidents from machinery, boilers, and steam, and all and every other dangers and accidents of the seas, rivers, and navi- gation, of whatever nature and kind soever, will, if published in a conspicuous manner in the office when such through booking is effected, and if printed in a legible manner on the receipt or freight note which the company gives for such animals, luggage, or goods, be valid, as part of the contract between the consignor of such animals, luggage, or goods, and the company, in the same manner as if the company had signed and delivered to the con- signor a bill of lading containing such condition. («) Where a railway company, under a contract for carrying per- sons, animals, or goods by sea, procure the same to be carried in a vessel not belonging to the company, they will be answerable in damages in respect of loss of life or personal injury, or in respect of loss or damage to such animals or goods during the (w) Cohen V. S. E. Ry., 2 Ex. D. L. E. 4 Q. B. 539 ; 38 L. J. Q. B. 253. 209. (x) Van Toll v. South-Eastern %. (2) Doolan v. Mid. Ky., 2 Ap. Gas. Co., 12 C. B. N. s. 75; 31 L. J. C. P. 792. 241. (a) 31 & 32 Vict. c. 119, sect. 14, (y) Zunz V. South-Eastern Ey. Co., post, p. *565. 791 *"561 CONTEA.CTS FOE SERVICES. [BOOK II. carriage in such vessel, in like manner, and to the same amount, as they would be answerable if the vessel had belonged to them, (b) Of the Implied Authority of the Servants of a Railway Com- pany to bind the Company by Special Contract. — " It is the duty of railway companies to have some person capable of giving directions and of dealing with everything that the exi- [ * 561 ] gency of the traffic may * require, and of granting any reasonable demand. The persons who are said to be general superintendent and managing director have power to bind the company as to all things within the scope of the busi- ness of the company by any contract within the limits of their employment." (c) If they act beyond the scope of their ordinary business, it must be shown, in order to bind the company, tliat they are acting under a special authority from the company, that is, the board of directors, {d) But if there is a particular course of dealing with which the consignor is acquainted, he must be taken to know that the servants have no power to bind the com- pany on any but the usual terms, (e) Commencement and Duration of the Liability — Damage or Loss of Goods In Warehouses. — When the common carrier of goods carries on the business both of a warehouseman and a common carrier, the nature and extent of his liability will depend upon the character in which he holds the goods at the time of the loss. If they are received into his warehouse to await the future orders of the owner or consignor as to their destination, he is clothed only with the ordinary duties and responsibilities of a warehouseman or bailee for hire. (/) Goods received at the cloak-room of a railway company, therefore, are not received by the company in their capacity of common car- riers, but simply as bailees for hire, (g) But if the destination is marked out, and the carrier has nothing to do but to forward (b) 34 & 35 Vict. c. 78, sect. 12, (e) Slim v. Great Northern Ey. Co., post, Y>. * 56r>. 23 L. J. C. P. 168. (c) Brown v. Brist. & E.x. Ry. Co., (/•) Cairns v. Robins, 8 iW. & W. i Law T. R. N. s. Ex. 830; Robinson v. 263; Carside v. Trent Navisjation Co., The Great West. Ry. Co., 35 L. J. C. P. i T. R. 582. ^^^- ^ ^ (g) Van Toll «. South-East. Ry. Co., (d) Taff Vale Ry. Co. v. Giles, 23 L. 31 Law J C P J. Q. B. 43. 792 CHAP. II.] CARRIERS. * 562 the goods on the earliest opportunity to the place indicated, he is responsible as a common carrier lor any loss or damage that may occur to the goods in the warehouse, as they are then in transitu, in contemplation of law. (h) AVlienever the common carrier receives goods to be kept until called for, or until he has orders from the consignee to forward them, he holds them as a bailee for hire, and not as a gratuitous bailee, although he does not charge warehouse rent, (i) Delivery of Goods at the Place of Destination. — The com- mon carrier of goods is bound, in common with all carriers for hire, to carry the goods intrusted to him for conveyance to their place of destination with reasonable expedition, (k) and deliver them into the hands of the consignee, or of some person * expressly or impliedly authorized by him to receive [*562] them ; and he must, of course, in all cases, take especial care that they are delivered into the hands of the right person, (l) If, however, carriers are imposed upon by a fictitious order, they will not be responsible if they act according to the usual custom of busines.s, and in accordance with their instructions, (m) When the carriage is by land, the goods must be sent to the residence of the consignee, for the common carrier is not released from responsibility by leaving them at the coach-of&ce, or at an inn by the road-side at which the coach usually stops, unless he has received directions from the consignee so to do. (n) If he tenders them at the residence of the consignee, and is ready to deliver them on receiving payment of his hire, he has fulfilled his contract as a carrier ; and if the hire is not paid, he is not bound, as we have already seen, to part with the possession of the goods ; but he may lawfully take them back to his own warehouse or place of business ; and he holds them thencefor- (h) ForwaH v. Pittard, 1 T. R. 27; (!) fiolilpn v. M,innm,e, 3 Wils. 433; BuUer, J., m Hyde v. Trent & Mersey 2 W. Bl. 916; Birket v. Willan, 2 B. & Nav. Co., 5 T. R. 398; see E:r parte Aid. 356; Duff v. Budd. 6 Moore, 469; Barrow, 6 Ch. D. 783. As to accidental Steplierison v. Hart, 1 M. & P. 357; 4 fires in warehouses, see Add. on Torts Bing. 476. ('.5th ed., by Cave), p. 339 et neq. (m) If they are imposed upon hy a (i) "White V. Hiimphery, 11 Q. B. 43. fictitious order, see McKean v. Mclvor, (k) Raphael v. Pickford, 6 Sc. N. R. L. R. 6 Exch. 36. 478; 2 Dowl. n. s. 916: Black v. Bax- (n) Lord. & North-West. Ry. Co. v. endale, 1 Exch. 410; 17 Law J. Exch. Bartlett, 7 H. & N. 400; 31 Law J. 50 Exch. 92. 793 * 563 CONTRACTS FOR SERVICES. [BOOK II. ward not as a common carrier, but as a bailee for hire, or (if he L? not entitled to charge, or does not charge, warehouse rent) as a gratuitous bailee, (o) and is only liable, therefore, to act with reasonable care and caution with respect to the goods, (jj) And if the consignee, having no warehouse of his own, asks him to keep the goods till he can conveniently send for them, the com- mon carrier thenceforth holds the goods only as a warehouseman for hire or a gratuitous bailee, according as he may or may not be paid for his care and custody of them, {q) Upon the arrival of the goods at their destination, and tender of them to the con- signee, the carrier is no longer a common carrier in the sense of being an insurer, but is bound nevertheless to take care of the goods ; (?') and if he is put to expense in so doing by reason of the default of the consignee in not receiving tlie goods, the car- rier may recover such e.Kpenses. (.?) Where goods are delivered to be carried to a certain place i'or a named consignee, such con- signee is entitled to delivery at any other place, and the carrier is not responsible for loss after such delivery, (t) The carrier is protected by the Carriers' Act after the goods have been [*563] negligently *carried beyond the destination, {v) When the carriage is by M'ater, the delivery at a \\'harf is not a delivery to the consignee, unless it is made so by the usage and practice of the port wliere the delivery takes place ; but the master is bound to gi^'e tlie consignee notice of the arrival of the goods, anil is not released from his responsibility for their safety until a reasonable time has elapsed after the giving of the notice for the consignee ot come and fetch them. He cannot escape from liis liability as a common carrier by immediately landing the goods at a public wharf, witliout giving notice to the consignee and giving him an opportunity of receiving them from the ship's side ; and if he does so land them, and they are (o) Storr V. Orowlcv, M'C'lel. & Y. Co. v. Swaffield, L. R. 9 Ex. 132; Chnp- 136. man v. G. W. Ily., 5 Q. B. D. 278 ; Ex (p) Hengh v. Lond. & North-West, parte Cooper, 11 Cb. D. 68. Ry.. L. R. 5 I'A'rh. SI, (s) Gt. N. Ey. Co. ■!). Swaffield, «tjiim. (q) In n Wplib, 8 Taunt. 449; 6 (0 Cork Distillers Co. v. Great Moore, .IflO; see Sheplierd r. Bristol & Southern liy. Co., Ireland, L. R. 7 H. L. Exeter Ry. Co., L. R. 3 Exeli. 189. 269. (r) See the cases eited in Smith on {u) Morrit v. N. E. Ry. Co., 1 Q. Negligence, p. 104; and see Gt. N. Ry. B. D. 302. 794 CHAP. II.] CARRIERS. * 563 destroyed upon the wharf by an accidental fire before the con- signee lias had an opportunity of taking them away, the ship- owners will be responsible for the loss, (x) Delivery of Luggage at Railway Stations. — In the case of the carriage of passengers with luggage by railway, if it is the usual course for tlie luggage to be taken from the train by the com- pany's servants and delivered to the passengers on the platform, the company is bound to deliver it there. And if tlie company choose to provide a more convenient mode of delivering luggage to passengers by employing porters to carry it across the plat- form to the vehicles by which it is to be taken away, their liability as common carriers continues until the porters have discharged their duty. (?/) The passenger must be allowed a reasonable time to claim his luggage at the destination, (z) Passengers' luggage is within sect. 7 of the Railways and Canals Traffic Act, and a notice or condition that the company will not be responsible is void, (a) Acceptance of Goods and Passengers to be carried beyond the Limits of the Ordinary Destination.^ — When a common car- rier takes into his care a parcel directed to a particular place, and does not by positive agreement limit his responsibility to a part only of the distance, (&) that is prima facie evidence of an nndertaking on his part to carry the parcel to the place to which it is directed, although the place may be beyond tlie limits within which he ordinarily professes to carry on his trade of a carrier. His responsibility, therefore, continues to the door of 1 Upon the various questions arising relative to conni'ctinfj; lines, see 1 Abb. Dig. Corp. tit. Railroads, VIII. 4; 2 ib. tit. Railroads, VII, 3; U. S. Dig. tit. Railroads : article, 14 West. Juv. 3j5; Insurance Co. u. Railroad Co., 104 IT. S. 146; Lee Lin v. Terre Haute, &c. R. R. Co., 10 Mo. App. 125; Lpf,in^ky v. Great Western Despatch, ib. 134; Marquette, &c. E. R. Co. v. Kirkwood, 45 Mich. 51; Halliday 1). St. Louis, &;. Ry. Co., 74 Mo. 159; Keep v. Indianapolis, &c. R. R. Co., 9 Fed. Reporter, 625; Bussey v. Memphis, &c. R. R. Co., 13 Fed. Reporter, 330. (x) Bourne D.Gatliffe, 3 Sc.N.R. 1; Western Ry. Co., 16 C. B. 13. See 8 ib. 604; 7 M. & Or. 850; Syeds v. ante, p. *544. Hay, 4 T. R. 260; Wardell v. Mouril- (z) Patscheider v. G. W. Ey., 3 Ex. lyan, 2 Esp. 693. D. 153. (y) Richards v. Lend. & Brighton, (a) Cohen v. S. E. Ry., 2 Ex. D. 253. &c., Ry. Co., 7 C. B. 839; 18 Law J. (b) That such a limitation is a reason- C. P. 251; Butcher v. Lond. & South- able one, see Aldridge v. Gt. Western Ey. Co., 33 Law J. C. P. 161. 795 *564 CONTRACTS FOE SERVICES. [BOOK II. the address to which the goods are destined, and he [*5G4] cannot release himself from such * responsibility by transferring the goods to another carrier, or sending them by another conveyance, (c) If a railway company, for ex- ample, accepts goods for conveyance to a particular destination, beyond the limits of its own line of railroad, and the goods are lost whilst in the hands of another railway company to whom they have been delivered to be forwarded on their journey, the first railway company is the party to be sued by the owner of the goods for the loss of them, {d) unless the company has by express contract limited its liability to loss and damage occur- ring on its own line of railway, (e) But a proviso in the contract exonerating tlie company from all liability in respect of loss of or damage to tlie goods occurring beyond the limits of its own line of railway, from the negligence of other companies to whom the goods have been delivered to be forwarded, is repugnant and void. (/) In the absence of special circumstances, the responsibility of a railway company in and about the conveyance of goods ac- cepted by them for delivery at a particular destination is the same, whether their own line extends the whole distance or stops at an intermediate point, and the railway companies carry- ing tlio goods beyond the limits of tlie first line of railway are, in respect of the conveyance and delivery of such goods, to be regarded as the agents of the railway company which originally received the goods, {g) The same principle applies to the con- veyance of passengers (A) who are injured during the journey, (c) GarrettB. Willan, 5B. &Ald. 53. (c) Fowles v. Gt. Western Ey. Co., {d) Muschaiiip v. Lane. & Preston 7 Exeh. 699; 22 Law J. Exeh. 76; Ry. Co., 8 M. & W. 421; Watson v. Aldrijge i'. Gt. Western Ey. Co., sujora; Ambergate Ry. Cn., 15 Jur. 448; Collins see Zimz v. South-East, Ry., ante, p. V. Bristol & Exeter Ry. Co., 11 Exeh. * 556. 790; 25 Law J. Exeh. 185; Brist. & (f) Brist. & Ex. Ry. Co. v. Collins, E.xeter Ry. Co. v. Collins, 7 H. L. C. 7 H. L. C. 321. 234; Wilijy v. West. Corn. Ry. Co., 2 (q) Crouch v. Gt. Western Ry. Co., H. & N. 709; Mytton v. Midland Ry. 26 Law J. Exeh. 345; Scothorn i>! South Co., 4 H. & N. 615; Coxen v. Gt. Staff. Ry. Co., 8 Ex. 345. Western Ry. Co., 5 H. & N. 274; 29 (h) Blake v. Gt. Western Ry. Co., 7 Law J. Exeh. 165; Hayes v. South- H. & N. 987; 31 Law J. Exeh. 346; Western Ry. Co., 9 Ir. C. L. R. 474; Buxton v. North-Eastern By. Co., L. R. Webber v. Great Western Ry. Co., 34 3 Q. B. 549. Law J. Exeh. 170. 796 CHAP. II.] CAKKIERS. * 555 although the negligence be that of the company over whose line the defendant company have running powers, and not of the defendants themselves, (i) And it applies to the commencement of the journey as well as its termination. Where, therefore, tlie contract was to carry the plaintiff from tlie shore to a hulk, and there wait tiU a vessel came to carry him to his destination, and he was injured while on board the hulk, it was held that the defendants were responsible, though the hulk did not belong to them, and they had only acquired by agreement tlie right to use it for the purpose of embarking passengers on board their vessels. (Jc) * Eailway companies may also enter into such arrange- [ * 565 ] ments with one another as to become agents for one an- other, and responsible for each other's acts, so that a contract to carry and deliver cattle made with one company may render the other liable for a breach occurring on the line of the latter. (I) If one railway company receives goods to carry part of the way, and then transfers them to another company to carry them to the place of destination, the agents of the latter company are agents of the first company for receiving notice of countermand ; and if they receive such notice and pay no attention to it, the first company is responsible for the neglect, (wi) The consignor may receive the goods at any stage of the journey, and may alter their destination at his pleasure, (n) By the 31 & 32 Vict. c. 119, it is provided (sect. 14) that where a railway or canal company, or the lessees, owners, or managers of such company, by through booking contract to carry any animals, luggage, or goods partly by railway and partly by sea or canal, a condition exempting the company from liability for any loss or damage arising during the carriage by sea from the act of God, the king's enemies, fire, accidents from machinery, boilers, or steam, and all other accidents of seas, rivers, and (i) Thomas v. Ehymney Ry. Co., (m) Scothorn v. South Staff. Ry. L. E. 5 Q. B. 226; 6 ib. 266. See Co., 8 Exch. 345; Crouch v. Gt. West. Foulkes V. Met. Ry. Co., L. E. 4 C. P. Ry. Co., 27 L. J. Ex. 345; 3 H. & N. D. 267; 5 C. P. D. 157. 201. (/fc) John ^. Bacon, L. R. 5 C. P. (rt) London & K, W. Ry. Co. v. 437. Bartlett, 7 H. & N. 400; 31 L. J. Ex. (1) Gill V. Manchester, &c. Ry. Co., 92; Butterworth v. Brownlow, 19 C. B.' L. R. 8 Q. B. 186; 42 L. J. Q. B. 89. N. s. 409; 34 J. C. P. 266. 797 * 566 CONTRACTS FOR SERVICES. [BOOK II. navigation of whatever kind, shall, if published in a conspicuous manner in the office where the through booking is effected, and legibly printed on tlie receipt or freight note, be valid as part of the contract between the consignor and the company. By the 34 & 3.j Vict. c. 78, it is provided (sect. 12) that where a railway company under a contract for carrying persons, animals, or goods by sea, procure the same to be canied in a vessel not belonging to the railway company, the railway com- pany shall be answerable in damages in respect of loss of life or personal injury, or in respect of loss of or damage to animals or goods, in like manner and to the same amount as the railway company would be answerable if the vessel had belonged to the railway company, provided that such loss of life or personal injury, or loss or damage to animals or goods, happens to the person, animals, or goods (as the case may be) during the car- riage of the same in such vessel, the proof to the contrary to lie upon the railway company. Effect of Giving the Carrier a Wrong Direction for the Delivery of the Goods. — If after the carrier has fulfilled his part [ * 566 ] of the * contract by conveying the goods to the place to which they are directed, it should appear that there is no such person as the one to whom the goods are addressed, or if the consignee refuses them, then an entirely new contract arises by implication of law between the carrier and the consignor; the carrier holds the goods as the bailee of the consignor, and is bound to take due and ordinary care of them and to deliver them to the consignor on being paid his fair and reasonable charges, (o) but he is not liable for a subsequent mis-delivery of the goods if he acts with reasonable care, {p) Refusal of Consignee to Receive the Goods — Liability of the Carrier as Bailee. — If the consignee refuses to receive the goods, or cannot be found, tlie carrier is not thereby exonerated from the duty of taking reasonable care of them and doing what is reasonable in the matter for the benefit of the consicrnor or the (o) Metcalfe «. LonJ. & Br. Ry. Co., McKean v. M'lvor, L. R. 6 Ex. 36; iO 4 C. B. N. s. 318; 38 L. J. C. P. 335; L. J. Ex. 30. Heugh V. Lornl. & North-We.st. Ry. {p) Heugh v. London & North-West- Cc, L. R. 6 Ex. 51; 39 L. J. Ex. 48; em Ry. Co., L. R. 5 Ex. 51; 39 L. J. 798 Ex. i, 8. CHAP. II.] CARRIERS. * 567 owner of them. If the person to whom they are addressed is not ready to receive thein at the place of delivery, the carrier must keep them a reasonable time, if he has a convenient place of deposit there, and if he has no place of deposit he must deal with them as any reasonably prudent person might be expected to deal with his own property. If the consignor or owner of the goods is known to him, it would be reasonable to expect that he would give him notice of the refusal of the consignee to receive them, and seek instructions for the disposal of the property. If the consignor or owner is unknown to him, no such notice can, of course, be given, or be reasonably expected; (q) but he should deposit the goods in some place of safety, and ought not at once to send back the goods to the place from whence they came, (r) Payment of the Pare or Hire — Carrier's Lien/* — When credit has not by the express contract of the parties been given for the payment of the price of the carriage of goods, the delivery of the goods to the consignee and the payment of the price of the carriage of them are concurrent acts, to be performed at the same time, so that the carrier is entitled to retain possession of the things he has carried until he receives or is tendered his hire for their conveyance. If the consignee refuses to pay the sum demanded for the carriage of them, the carrier is not justi- fied in at once sending them back to the place from whence they came, but must hold *them a reasonable [*567] time, to see if the consignee will accept and pay for them, (s) If he still refuses, the carrier then holds them at the disposal and for the benefit of the consignor, and is entitled to look to the latter for the payment of his hire. The carrier holds the goods, first that he may get payment of the freight, and then to deal with them as the consignee may direct, (t) The transit • For a recent and interesting decision, that a railroad company cannot detain a passenger after his trip is completed, to compel him to surrender a ticket or pay fare, for so doing amounts to assuming authority to imprison him for debt, see Lynch v. Metropolitan Elevated R. K. Co., 15 N. Y. Week. Dig. 317. (?) Hudson V. Baxendale, 27 Law J. (.s) Gt. West. Ey. Co. v. Crouch, 3 Exch. 93. ■ H. & N. 201 ; s. c. Crouch v. Gt. West. (r) Gt. Western Ry. Co. v. Crouch, Ry. Co., 27 L. J. E.t. 345. 3 H. & Tf. 169; 27 Law J. Exch. 345; («) Ex parte Barrow, 6 Ch. D. 783. Heugh V. L. & N. W. By., L. R. 5 Ex. 61; 39 L. J. Ex. 48. 799 * 568 CONTKACTS FOR SEKVICES. [BOOK II. is not at an end so long as tlie carrier holds the goods as carrier, nor until by agreement between him and the purchaser he holds them not as carrier, but as the purchaser's agent. («) Where a carrier delivers part of the goods, it may be assumed that he has not abandoned his lien upon the rest for his unpaid freiglit. He is bound to deliver up to the extent of the freight wluch has been paid ; but the moment he has delivered enough to satisfy that, he has his lien upon the whole of the remainder of the cargo for the unpaid balance of the freight, (x) If a railway company makes and posts at the offices and stations a by-law to the effect that every passenger who loses his ticket shall be liable to pay the full fare from the most distant station on the line, the company has no power to enforce the by-law by detain- ing the person of a passenger who has lost his ticket and refuses to pay the specified amount. (?/) The common law accords to common carriers, who are bound, as we have seen, to receive and carry the goods of persons wlio tender them for conveyance, and are ready and willing to pay the customary hire, a right to retain the goods and chattels of such persons until they have received the customary remuner- ation for the services tliey have been compelled to render them, whether the goods are the property of the i)ersons who have tendered them for conveyance, or the property of third parties from whom they have been fraudulently taken or stolen. Thus where goods were stolen and delivered to a carrier to be carried to Exeter, and the owner, finding them in the possession of tlie carrier, demanded them of him, and the carrier refused to deliver them without being paid the price of tlieir carriage, it was held that he was justified in so doing, " for when the robber brought them to him, he was obliged to receive them and carry them ; and, therefore, since the law compelled him to carry them, it will give him remedy by retainer for the price of the cai'riage." (z) But the carrier has no right of lien by the common [*568] law for * anything beyond the price of the carriage [u) Ex parte Cooper, U Ch. D. 68. 2 Q. B. 534. See Add. on Torts (5th (a;) Ex parte Cooper, siipra. ed., by Cave), p. 139. (y) Chilton v. Lond. & Croyd. Ry. (i) Exeter Carrier's Case, cited 2 Ld. Co., 16 M. & W. 212; 16 L. J. Ex. 89; Raym. 867. Poultou V. L. & N. W. Ry. Co., L. K. 800 CHAP. II.] CARRIERS. « 568 of the goods conveyed. He cannot detain them until he has received payment of a general balance due to him from the owners of such goods. Common carriers have oftentimes at- tempted to obtain a lien of this description, and to secure the payment of debts due to them for the previous conveyance of goods, by giving notices to the effect that all goods delivered to them for conveyance will be held as a security for the pay- ment of such debts, as well as for the payment of the price of their own carriage, (a) But the common carrier has no right to make any such bargain or stipulation. He is bound, as we have already seen, so long as he has room in his cart or carriage, to convey the goods of all persons on being tendered his hire for the carriage of the particular goods sought to be conveyed ; and if he does obtain a promise from the consignor to the effect that he shall, if he carries the goods, have a right to retain them in his hands as a security for the payment of an antecedent debt, such promise is a mere nudum pactum, of no force or effect in the eye of the law. (b) Where an Order in Council under an act of parliament (c) directed that every cattle-truck should be disinfected once in every twenty-four hours during its use, it was held that the railway company had no lien for the expense of such cleansing upon the person sending cattle by the truck, as it was not a service done for such person individually as distinguished from the rest of the public, {d) The 97th section of the 8 Vict. c. 20, gives no lien upon goods for tolls or charges due to a railway company for other goods previously conveyed by them as carriers, bat only for tolls pre- viously due for the use of the line by persons conveying goods in their own carriages, (e) If a person goes to a coach-office and orders a place to be booked for him by a particular coach, and that be done, and he then leaves his portmanteau at the coach-office, the coach-pro- prietor will, it seems, have a lien upon the portmanteau for his (a) Wright v. Snell, 5 B. & AH. 353. and see now 41 & 42 Tict. e. 74, aTde, {h) Butler v. Woolcott, 2 B. & P. N. p. *52r. R. 64; Oppenheim v. Russell, a B. & P. (rf) Cox v. Gt. Eastern Ry. Co., L. 47; Rushforth u. Hadfield, 6 East, 527; R. 4 C. P. 181. 7 ib. 227. (e) Wallis v. L. & S. W. Ry., L. R. (c) 11 & 12 Vict. c. 107. This act is 5 Exch. 62. repealed by the 32 & 33 Vict. c. 70, VOL. I. 51 801 *569 CONTRACTS FOE SERVICES. [BOOK II. reasonable and customary remuneration and charge for booking ; hut if the person merely leaves his portmanteau, and no place is booked, the coach-proprietor has no lien upon the portmanteau at all. (/) When goods delivered to be carried are received from the wagon of the common carrier by the consignee, [ * 569 ] and are merely caiTied * into the warehouse to be weighed, the carrier has no right to charge for ware- house-room ; and if the goods are taken up on the road, and have never been booked, he has no right to charge for the booking of them ; and if, after tender of the price of the carriage, he detains them for these small charges, the detention is unlawful, and an action may be brought against him in respect thereof {g) A com- mon carrier of passengers and luggage has a right of lien upon the luggage for the payment of the fare of the passenger as well as for the carriage of his effects ; but he has, of course, no right to de- tain the person of the passenger or the clothes he is actually wear- ing. (A) And if the carrier once parts with the possession of the goods he loses his lien, as in other cases. But if he loses the pos- session by fraud, the lien revives if possession is recovered. {%) Common Carrier's Charges — Railway Charges ^ — By-laws. — The statutes requiring justices of the peace to assess and fix the price of all land carriage of goods have long since been repealed ; (/c) but the hire or charge for the carriage must be fair and reasonable, and must not e.xceed the ordinary and customary Tate of remuneration. If a person sends to a carrier's office to know his rate of charge, the carrier is bound by the representa- tion there made by his clerks ; and if goods are sent upon the faith of such representation, the carrier cannot charge more than the sum named, although the clerk may have inadvertently fallen into a mistake, (l) When by a railway act it is enacted 1 For discussions of discrimination in railroad freights, see an article on Extor- tionate traffic rates, by A. Hamilton, 16 Am. L. Ecv. 446, ib. 818; Southern Express Co. v. St. Louis, &c. Ey. Co., 10 Fed. Reporter, 210; Hays v. Penn- sylvania Co., 12 ib. 309. (/) Higgins V. Bretherton, 5 C. & P. {h) "Wolf v. Summers, 2 Campb. 631. 2. "VVhetlier, if the place be booked, (i) Wallace v. Woodgate, Ry. & M. the coach proprietor would also have a 194. lien for the full amount of the fare, (^) 7 & 8 Geo. IV. c. 39 (repealed ). qumre, s. o. {!) Winkfield v. Packington, 2 C. & (fl') Lambert t). Robinson, 1 Esp. 119. P. 600. 80 o CHAP. II.] CARRIERS. * 570 that the word "toll" shall include the charge for goods conveyed by the railway, whether for the use of the railway or for the moving power, or for the use of the carriage, prima fade it includes everything that a carrier does, and for which he is entitled to charge, (m) By the acts of parliament under which railway companies are incorporated, it is generally provided that the charges for the carriage of goods shall be reasonable and equal to all persons. Duty of Railway and Canal Companies to afford Reasonable Facilities for the Carriage of Passengers, Merchandise, and Chat- tels.— By the Railway and Canal Traffic Act (17 & 18 Vict, c. 31), it is enacted (sect. 2) that every railway company and canal company shall, according to their respective powers, afford all reasonable facilities for the receiving, forwarding, and deliver- ing of traffic upon and from the several railways and canals belonging to or worked by such companies respect- ively, and for the return of * carriages, trucks, boats, [*570] and other vehicles; and no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever ; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever ; (71) and every railway company and canal company having or working railways or canals which form part of a continuous line of rail- way or canal, or railway and canal communication, or which have the terminus, station, or wharf of the one near the ter- minus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals to the other, without any unreasonable delay, and without any such preference, or advantage, or prejudice or disadvantage, as aforesaid, and so that no obstruction may be offered to the public desirous of using such railways and canals as a continuous line of com- munication, and so that all reasonable accommodation may, by (m) Pegleru. Monm. Ey. &Can. Co., Law J. Exch. 18; L. R. 4 Eng. & Ir. 6 H. & N. 644; 30 L. ,T. Ex. 249. App. [226; 38 Law J. Exch. 107; see (») Sutton V. Gt. West. Ry. Co., 35 post, p. » 572. 803 *571 CONTRACTS FOR SERVICES. [BOOK 11. means oi the railways and canals of the several companies, be at all times afforded to the public. It has been held, however, that the above section applies only to the " receiving," " forward- ing " and " delivering " of traffic, and not to facilities for storing goods after they have been delivered to the consignees. Where, therefore, a railway company let the surplus land adjoining their station to one coal merchant to the exclusion of others, it was held that another coal merchant had no ground of complaint, although the first-named merchant did not require or use the whole of the surplus land for the purpose of storing his coals, (o) Where a railway company acted as a common carrier of goods, and issued certain scales of charge for the carriage, including the collection, loading, rinloading, and delivery, and also caiTied goods for other carriers, to whom they made certain allowances for col- lection, &c., but in their dealings with a particular carrier they refused to make these allowances, it was held that the charges to the latter were not equal or reasonable, and that he might re- cover from the company divers extra charges paid by him over and above what had been charged to other carriers and to the public, such payments not being voluntary, but made in order to induce the company to do that which they were by law [ * 571 ] bound to do * without requiring such payments, (p) ISTo distinction must be made by the company between one class of persons and another, (q) The company cannot, therefore, charge a person who is himself a common carrier, for a parcel or package, whatever may be its contents, more than it would charge one of the public, (r) Charges for collection and delivery of parcels cannot be included in the general charge for the (o) Westt). L. &N". \V. Ey., L. R. (q) Roe Eansome v. East. Co. Ey. 5 C. P. 622, per Jlontague Smith and Co., 26 Law J. C. P. 91. It seems that Brett, JJ., diss. Bovill, C. J., and Keat- the convenience of the pnblic is an ele- ing, J. As to the forwarding, &c., of ment in the consideration of what may through traffic from one line to another, constitute an " undue " preference ; see see Eailway Eegulatiou Act, 1873, 36 & Palmer v. Lond. & Brighton Eailway 37 Vict. c. 48, sect. 11. Co., L. P,. 6 C. P. 194. ip) Parker v. Great Western Eail- (r) Parker v. Great "Western Eail- way Company, 7 M. & Gr. 253; 7 Sc. way Company; Parker v. Bristol & N. E. 835; 11 C. B. 545; 21 L. J. C. P. Exeter Eailway Company, London & 57; Parker v. Brist. & Ex. Ey. Co., 6 North- Western Eailway 'v. Evershed, Exch. 702; L. & N. W. Ey. v. Ever- mpra. shed, 3 Ap. Cas. 1029. 804 CHAP. II.] CAEKIEKS. * 572 carriage, so as to impose upon parties who do not require these services and do not avail themselves of them the burthen of pay- ing for them, (s) No unreasonable preference or advantage can lawfully be given to any particular person or company, or to any particular description of traffic, (t) But the fair interests of the railway company must be taken into consideration; and they are entitled to make a difference in their charges, where it is shown that there is a difference in the cost of carriage to the company, and in the labor and expense incurred by them in the delivery of the goods, (u) If overcharges are made, they may be recovered back, (x) Therefore, where a railway company charged a certain rate upon the aggregate weight of several packages, if addressed to the same consignee at the same place, it was held that they could not charge a common carrier separately upon the weight of the pack- ages consigned to him, although, in addition to th.e carrier's address on the packages, there was also labelled the address of the person to whom the carrier (through his agent) intended to deliver them, (y) However, this will not prevent a railway company from charging through rates to places beyond their termini at a rate lower in proportion than that charged for part of the distance, although such part is the whole of their line, and a common carrier is not, therefore, entitled to have his packages carried over the line for such lower rate. («) The 31 & 32 Vict. c. 119, provides (sect. 16) for equal charges to passengers where a railway company is authorized to maintain * and work steam vessels in communica- [*572] tion with their railway, and prohibits any reduction or advance in the fare in consequence of the persons using the steamboat having travelled, or being about to travel, by the rail- (s) Baxendale v. Gt. West. Ey. Co., 137. As to tonnage rates and parcel 16 C. B. N. s. 137 ; 33 L. J. C. P. 197 ; rates, see Parker v. Gt. ^yest. Ry. Co., Garten v. Bristol & Exeter Ry. Co., 6 Ell. & Bl. 103. 1 B. & S. 112; 30 L. J. Q. B. 273. (x) Pegler v. Monmouth, &c. Ey. (<) 17 & 18 Vict. c. 31, sect. 2; see Co., 6 H. & N. 644; Garton v. Bristol L. & N. W. Ry. V. Evershed, 3 Ap. Cas. & Exeter Ry. Co., 30 Law J. Q. B. 1029. 273 ; L. & N. W. Ry. v. Evershed, (u) Eansome v. E. Co. Ry. Co., 1 C. supra. B. N. s. 437; Oxlade v. North-East. Ry. {y) Baxendale v. Lond. & South- West. Co., ib. 454; Baxendale v. East. Co. Ry. Ry. C, L. E. 1 Exch. 137. Co., 4 C. B. N. s. 81 ; 27 L. J. 0. P. (s) s. c. 805 *572 CONTEACTS FOE SEEVICES. [BOOK IL way or not. Where an aggregate sum for the fare by boat and rail is charged, the ticket must distinguish the amount charged for each (Ibid.). Where two railways are worked by one com- pany, the calculation of charges by distance must be reckoned as if it was one railway (sect. 18). As to agreements between railway and canal companies, see 36 & 37 Vict. c. 48, sect. 16. Carriage of Packed Parcels.^ — A railway company has no right to make an increased charge for packed parcels, in order to prevent carriers from entering into competition with them in the conveyance of goods ; and there is no difference between a packed parcel sent to an individual containing parcels belonging to a vari- ety of people, and parcels sent to an individual, all the contents being his own. (a) But in certain cases an extra charge might be made for increased risk; (b) and if the company has to make separate deliveries to several different persons, they are entitled to make an additional charge in respect of the increased trouble, (c) When the duty of making equal charges to all persons is not imposed upon the company, they may impose a different rate of carriage for packed parcels from what they charge for ordinary packages, {d) ^ For recent discussions of the obligation of railroad companies to furnish transportation to express companies desiring carriage over their routes, see South- ern Exp. Co. V. Nashville, &c. Ry. Co., 20 Am. Law Reg. N. s. 590, and note by F. P. Prichard, ib. 602 ; .s. c, 2 Fed. Reporter, 265 ; Southern Exp. Co. v. Memphis, &o. R. E. Co., 2 McCrary, 570; Diusmore v. Louisville, &c. Ry. Co., 2 Fed. Reporter, 465; Dinsmore u. Louisville R. R. Co., 3 Fed. Reporter, 593; Southern Exp. Co. v. Louisville, &c. R.. R. Co., 4 Fed. Reporter, 481; Texas Exp. Co. V. Texas, &c. Ry. Co., ib. 427; Southern Exp. Co. v. St. Louis, &c. Ry. Co., 10 Fed. Reporter, 210. Compare Coe v. Louisville, &c. Ry. Co., 3 Fed. Reporter, 775, where a like question arose between a stockyard company and a railroad. That « railroad company may not give a telegraph company exclusive privileges, see Western Union Tel. Co. v. Kansas Pacific Ry. Co., 4 Fed. Reporter, 284; Western Union Tel. Co. V. Burlington, &c. Ry. Co., 11 Fed. Reporter, 1, and note by F. Wharton, ib. 10; \Vestern Union Tel. Co. v. American Union Tel. Co., 65 Ga. 160. {a) Pickford v. Grand June. Ry. Western Ry. Co. v. Sutton, L. R. 4 H. Co., 10 M. & W. 399 ; Crouch v. Gt. L. 226; 38 L. J. Ex. 177. North. Ry. Co., 11 Exch. 755; Pidding- (h) Gaiton v. Bristol & Ex. Rv. Co., ton V. S. E. Ry. Co., 5 C. B. N. ,s. 120 ; 4 H. & N. 49; 28 L. J. Ex. 169. ' 27 L. J. C. P. 295; Baxendale v. The (c) Baxendale v. East. Co. Ry. Co., London & South-Western Ry. Co., L. sifpra. R. 1 Ex. 137; 35 L. J. Ex. 108; Garton [d) Branley v. S. E. Ry. Co., 30 L. V. Brist. & Exeter Ry. Co., supra; Great J. C. P. 286; 12 C. B. N. s. 63. 806 CHAP. II.] CARRIERS. * 573 In some cases deciding that an extra charge may be made for packed parcels, the company claimed to charge extra to carriers for packed parcels, and not to charge extra to customers who were not carriers, for what they called inclosures, which were in reality packed parcels, and the courts have held that an extra charge for a packed parcel to a carrier was against the statutes imposing upon railway companies the duty of charging equally to all persons in respect of all goods of a like description ; {e) but the company has a right to divide goods into classes by descrip- tions appropriate to the different classes it chooses to make, and to make different charges for the different classes, (f) By 31 & 32 Vict. c. 119, sect. 17, it is provided that, on application by writing to the secretary of the company by any person who has paid for the conveyance of * goods, the company shall [ * 573 ] render an account to the applicant distinguishing how- much of the charge is for conveyance, — including tolls for the use of the railway, the use of carriages, and for locomotive power, — and how much for loading and unloading, covering collection, delivery, and other expenses, but without particular- izing the items of such last-mentioned charge. Injunction against Railway Companies to enforce Compliance with the Railway and Canal Traffic Act. — By 17 & 18 Vict. c. 31, sect. 3, it is enacted that it shall be lawful for any company or person complaining against any railway company or canal company of anything done, or any omission made in contraven- tion of the Eailway and Cacal Traffic Act, to apply in a sum- mary way to the Court of Common Pleas, or any judge thereof (see note {g) infra), and that it shall be lawful for the court or judge to hear and determine the matter of the complaint, and to make inquiry in the mode therein directed, and to issue a writ of injunction or interdict, restraining such company or com- panies from further continuing such violation or contravention of the act, and enjoining obedience to the same ; {g) and in case of disobedience of any such writ of injunction or interdict, to (e) Parker v. Gt. "Western Ry. Co., (/) Erie, J., Branly i). South-East- 11 C. B. 545; Crouch v. Gt. Northern ern Ry. Co., 12 C. B. N. s. 63; 31 Law Ey. Co., 11 Exch. 742; 25 Law J. Exch. J. C. P. 290. 137 ; Gt. West. Ry. v. Sutton, L. R. 4 (g) See Ransome u. East. Co. Ry. Co. , Eijg. & Ir. App. 226. 26 Law J. C. P. 91. 807 * 574 CONTRACTS FOE SERVICES, [BOOK II. order that a writ of attachment or any other process of such court incident or applicable to writs of injunction or interdict, shall issue against any one or more of the directors of any com- pany, or against any owner, lessee, contractor, or other person failing to obey such writ of injunction or interdict ; and to make an order directing the payment by any one or more of such com- panies of a sum of money not exceeding for each company the sum of £200 for every day, after a day to be named in the order, that such company or companies shall fail to obey such injunc- tion or interdict, such moneys to be payable as the court or judge may direct, either to the party complaining, or into court, to abide the ultimate decision of the court, or to her Majesty ; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order, in the nature of a writ of execution ; and in any such proceeding, the court or judge may order and determine that all or any costs thereof or thereon incurred shall be paid by or to the one party or the other, as the court or judge shall think fit. Qi) '■' It is abundantly clear," observes Cockburn, C. J., " from the statutory enactments which enjoin on railway companies the ob- ligation to afford accommodation on equal and reasonable terms, and from the provisions of the statute by which jurisdiction is given to the Court of Common Pleas against the afford- [*574] ing of undue * preference, or the imposing of undue prejudice or disadvantage, that it was not the intention of the legislature to leave to railway companies the unfettered exercise of their rights as proprietors of their respective lines ; but in return for the great powers which it has conceded to them, and for the monopoly of the carrying business of the country, which in a great degree they ha^'e been enabled to acquire, has imposed on them the obligation of affording accommodation on equal terms to the whole of the public ; " and they cannot pro- mote their own interest as carriers at the expense of the right of the public to that equality, {i) or give to one individual greater (h) These powers are now exercised and their orders may be enforced by the by the Railway Commissioners under court. the 36 & 37 Vict. u. 48, in certain cases, (j) Baxendale v. Gt. Western Ry. Co., 5 C. B. K. s. 354; 28 Law J. C. P. 69. 808 CHAP. II. J CAERIEKS. * 575 advantages at their stations, (k) or upon their line, than they allow to another. (I) Where a railway company, in order to compete with a particu- lar carrier in the collection and delivery of parcels, makes a man who has his own wagons and horses, and therefore does not require the company to collect and deliver parcels for him, pay more than he ought to pay for the transit on the railway, it is a case of undue prejudice against the person not wanting the ac- commodation. The company have no right to make a charge nominally for carriage upon the railway, which is in reality for that and something else, and so impose upon a portion of the public services which they do not desire to avail themselves of. (m) So if a number of tradesmen in a country town request a railway company to deliver all goods addressed to them to a local carrier for distribution by him, the company cannot, in order to compete with that carrier, under the pretence of requir- ing a special order as to each package, in effect cause the delivery by such carrier to be so delayed as to become impracticable, (m) Nor can a railway company exclude carriers' vans from the delivery of goods at a station after a certain hour; if they admit vans, with goods collected from their own receiving houses, after that hour, (o) In execution of the powers conferred on them by this statute, the courts will issue writs of injunction, enjoining railway com- panies proved to have given an undue preference to one person or set of persons over another in respect of the conveyance of particular classes or descriptions of commodities, to desist from giving * such undue preference, (ji) But [*575] the operation of the statute is confined to undue prefer- ences (^iven to one person or class of persons over another in the (k) Marriott o. Lond. & S. W. Ey. ib. 137; 33 Law J. C. P. 197; see 31 & Co., 1 C. B. N. s. 499; 26 Law J. C. P. 32 Vict. c. 119, sect. 17, ante, p. *572. 154; Beadell v. East. Co. Ey. Co., ib. (n) Parkinson v. Gt. Western Ry., 250; Baxendale, In re, 11 C. B. N. s. L. E, 6 C. P. 654. 787; 12 ib. 758. (o) Palmer v. Lond., Brighton, & (l) Baxendale v. North Devon Ry. South Coast Ey., L. E. 6 C. P. 195. Co 3 C B. N. M. 324; see 31 & 32 Vict. (p) Harris v. Cockermouth, &o. Ey. o. 119, sect 16, ante, p. * 571. Co., 3 C. B. N. s. 693; 27 Law J. C. P. (m) Cockburn, C. J., Carton v. Gt. 162; Eansonie o. East. Co. Ey. Co., ib. Western Ey Co., 5 C. B. N. s. 678; 166; 8 C. B. N. s. 709; Coopers. Lond. Baxendale v. Gt. Western Ey. Co., 16 & S. W. Ey. Co., 27 Law J. C. P. 324. 809 * 575 CONTEACTS FOR SERVICES. [BOOK H. traffic along the same railway or canal, (q) and travelling between the same places, and not to superior advantages which may be given to one town over another town on the same line of rail- way. (r) And it has been held that the statute is not con- travened by a railway company carrying at a lower rate, in consideration of a guarantee of large quantities and full train- loads at regular periods, provided the real object of the railway company be to obtain thereby a greater remunerative profit by the diminished cost of the carriage, altliough the effect may be to exclude from the lower rate those persons who cannot give such a guarantee, (s) Before the court will put the powers of the Eailway and Canal Traffic Act in motion, as regards the granting of an injunc- tion, the court must in general be satisfied that some substantial injury or inconvenience is sustained by the public by the act complained of, and that the complaint is iona fide made on be- half of the public, {t) And it has been held that, the exercise of this special jurisdiction being subject to no review, and depend- ing in each instance upon the special facts of the case, cases previously decided under it are not binding on the court in the same way that precedents in law are binding, (tt) Passenger Fares — Right of a Passenger to alight at Intermedi- ate Stations.^ — Where a railway company, under the influence 1 The drift of the decisions sustains the view that for a passenger to attempt to climb upon a car after tlie train has started, or to jump from it before it has stopped, is such negligence on his part as deprives him under ordinary circum- stances of any claim against the company for a personal injury sustained. This conduct is presumably negligent. Ordinarily, the passenger must find his way to the cars before the train starts ; and must wait, for leaving them, until it has come to a standstill. Special circumstances must exist to excuse him in a de- parture from this general rule. A passenger does not necessarily act at his own risk in leaping upon or from a moving train; but he must be prepared to show unusual facts in order to cast the risk upon the company. Achison, &c. R. R. Co. V. Flinn, 24 Kan. 627; Delaware, &c. R. R. Co. v. Napheys, 90 Pa. St. 125; "Wilson 'V. Northern Pacific R. R. Co., 26 Minn. 278; Strauss v. Kansas City, (j) Bennett ■!). Manch.,Sheff. & Line. {t) Painter i;. Lond. & Br. Rail. Co., Ry. Co., 6 C. B. N. s. 715. 2 C. B. n. s. 702 ; Ee Caterham Ry. (r) Jones v. East. Co. Ey. Co., 3 C. Co., 1 C. B. N. s. 410. B. N. s. 718. (u) Palmer v. Lond. & South- West. (s) Nicholsons. Gt. Western Ry. Co., Ry. Co., L. R. 1 C. P. 589; disa.Willes 5 C. B. N. s. 441 ; Strick v. Swansea and Keating, JJ. Canal Co., 31 Law J. C. P. 240. 810 CHAl'. II.] CARRIERS. * 576 of competition, charged a low rate of fare to a distant locality, and sought to prevent passengers from getting down at intermediate stations, to which a higher fare was cliarged, on the ground that they had not paid the fare to such intermediate station, and were answerable to a by-law subjecting to a penalty any person who should enter a carriage without having previously paid his fare, it was held that the by-law was wholly inapplicable ; that the passenger had paid his fare ; and that the company had no right to prevent him from getting down at any intermediate station. («) Duties and Responsibilities of Common Ferrymen. — A common ferryman is a common carrier, and is bound to provide safe and * secure ferry-boats, and safe slips and landing- [* 576 ] stages, and all proper means and appliances for the safe transit of persons who may have occasion to use the ferry for themselves, or for the transit of their horses and carriages, lug- gage and merchandise. Where, therefore, the defendants, as ferrymen, used steamboats for transit across the Eiver Mersey, from which passengers and animals could not safely land with- out landing-stages and slips, and they provided an insecure hand- rail to a landing-stage, which broke and caused the death of the plaintiff's mare, it was held that they were bound to make good the loss, (y) Loss of Goods by Common Ferrymen and Common Hoymen. — Common ferrymen and common hoymen, being common carriers, are responsible for the safe delivery of goods intrusted to them for conveyance, unless they have been prevented by storm, light- ning, tempest, or inevitable accident. {£) In Mouse's case it was &c. R. Co., 14 Cent. L. J. 355; Jewell v. Chicago, &e. R. E. Co., 13 Re- porter, 767; Kelly v. Hannibal, &c. R. R. Co., 70 Mo. 604; Commonwealth v. Boston, &c. R. R. Co., 23 Alb. L. J. 125; Cotter v. Frankford, &c. Ry. Co., ib. 124; Phillips v. Rensselaer, &c. R. R. Co., 49 N. Y. 177; Georgia R. R. &c. Co. V. MeCurdy, 45 Ga. 288; Gavett v. Manchester, &c. R. R. Co., 16 Gray, 501; Loyd V. Hannibal, &c. R. R., 53 Mo. 509; Doss v. Missouri, &c. R. R. Co., 59 Mo. 27; Lucas v. 'S&w Bedford, &c. R. R. Co., 6 Gray, 84. (x) Reg. ■!). Frere, 4 EU. & Bl. 598. As [y) Willoughby v. Horridge, 12 C. to the construction of this by-law, see B. 751 ; 22 Law J. C. P. 90. Jennings ■«. Gt. Northern Ry. Co., L. R. (s) Amies v. Stevens, 1 Str. 128; 1 Q. B. 7 ; Dearden v. Townsend, ibid. Bac. Abr. Carriers (B); Oakley «. Ports- j^Q mouth, &c. Steam Packet Co., mile, p. *532. 811 *576 CONTRACTS FOR SERVICES. , [BOOK II. resolved " that if the ferryman surcharge the barge, it is lawful for any of the passengers in time of accident and necessity to cast the things out of the barge for safety of the lives of the passengers ; and the owners shall have their remedy upon the surcharge against the ferryman, for the fault was in him upon the surcharge ; but if no surcharge was, but the danger accrued only by the act of God, as by tempest, no default being in the ferryman, every one ought to bear his loss for the safeguard and life of a man, for ' interest reipublicas quod homines con- serventur.' " (a) Season Ticket ^ — Conditions — Forfeiture of Deposit. — The plaintiff purchased a season ticket, and agreed to be bound by certain conditions, one of which was that the ticket was to be considered the property of the company, to be delivered to them on the day after expiry ; another was that the ticket and tlie deposit should be forfeited on breach of any of the conditions. A few days after expiry of the ticket the plaintiff delivered it to 1 The obligations of a railroad company toward a passenger may rest either upon its public duty to carry him because he has paid fare, or upon some actual contract between him and the company (Walsh v. Chicago, &c. R. E. Co., 42 Wis. 23); accordingly, a railroad ticket may operate either as a mere certificate or token issued by the njoney-taker of the company to the passenger, as evidence which the latter may produce to the conductor that he has paid fare (Rawson v. Pennsylvania R. R. Co., 45 N. Y. 212), or as a writing setting forth the terms of an actual special contract for transportation (Stone v. C. & N. W. E. Co., 47 Iowa, 82). For cases discussing the construction of tickets regarded as contracts, such as limited tickets, excursion tickets, commutation or season tickets, and the like, see Hall v. Memphis, &c. R. Co., 9 Fed. Reporter, 585; Hudson v. Kansas Pacific Ey. Co., ib. 877; Ripley v. New Jersey, &c. R. R. Co., 31 N. J. L. 388; Downs V. New York, &c. R. R. Co., 36 Conn. 287; Keeley v. Boston, &c. R. K. Co., 67 Me. 163; State v. Campbell, 32 N. J. L. 309; Boice v. Hudson River R. E. Co., 61 Barb. 611; Gale v. Delaware, &c. 1!. E. Co., 7 Hnn, 670; Elmore 1'. Sands, 64 N. Y. 512; Davis v. Kansas City R. R. Co., 53 Jlo. 317; Dietrich v. Pennsylvania R. R. Co., 71 Pa. St. 432; Ohio, &e. Ey. Co. v. Sivarthwout, 67 Ind. 567; Ohio, &c. Ry. Co. v. Hatton, 60 Ind. 12; Pittsburg, &c. Ry. Co. v. Nazum, ib. 533; Ailing d. Boston, &c. R. R. Co., 126 Mass. 121; Hecks d. Hannibal, &c. R. E. Co., 68 Mo. 329; Gregory v. Burlington, &c. R. R. Co., 10 Neb. 250; Tarbell 'o. Northern Cent. Ry. Co., 24 Hun, 51; Cresson v. Philadelphia, &c. R. R. Co., 11 Phila. 597; Petrie v. Pennsylvania R. R. Co., 11 Reporter, 848; Baltimore, &c. R. v. Campbell, 36 Ohio St. 647. Limited ticket on a street railroad. McMahon v. Third Ave. R. R. Co., 47 N. Y. Superior Ct. 282. (a) Mouse's case, 12 Co. 63. 812 CHAP. II.] CARRIERS. * 577 the company, and claimed a return of the deposit ; and it was held that the plaintiff could not recover the deposit, (b) Ruinous and Insecure RailTvay Bridges, Viaducts, and Embank- ments. — Every railway company in the actual possession and occupation of its line of railway is responsible for the mainte- nance and preservation in a good state of repair of all its bridges, viaducts, and emhankments, so that if any injuries are sustained either by persons travelling along a highway under a bridge or viaduct, (c) or by passengers travelling along the line, from the * riiinous and insecure state of such bridge or [ * 577 ] viaduct, the railway company will be responsible for the injury, whether it arose from their own neglect in not providing needful reparations, or from original faulty construction of the fabric by their engineer or contractor, (d) If a railway embank- ment has been injured by some wholly unexpected and extraor- dinary flood, and the rails give way, and the passengers are injured without any neglect or default on the part of the com- pany, the company is not responsible for the injuries that may he sustained by the passengers ; (e) but every railway company is bound to construct and maintain its embankments and earth- works in such a manner as to be capable of resisting all the violence of the vy^eather, which may be expected at some time or another, though rarely, to occur, and if it fails in this duty it will be responsible in damages for negligence. (/) Notice of Action to Railway Companies. — When an act of parliament constituting and incorporating a railway company provides that no action shall be brought against the company for anything done or omitted to be done pursuant to the act, or in execution of the powers and authorities given by the act, unless previous notice in writing shall have been given by the party intending to prosecute such action, or unless such action shall have been brought within a certain limited period, the enactment does not in general extend to actions ex contractu, and (6) Cooper v. L. B. & S. C. Ky., v. Gt West. Ry., 35 Law J. C. P. 4 Ex. D. 88. 135. (c) Kearney v. L. B. & S. C. Ry., (e) "Withers v. North Kent Ry. Co., L. R. 5 Q. B. 411; 6 Q. B. 759. 27 Law J. Exeh. 417. (d) Grote v. Che.ster, &c. Ry. Co., 2 (/) Gt. West. Ry. Co of Canada d. Exch. 251. As to bridges at stations for Fawcett, 1 Moore's P. C. C. N. s. 120; passengers to cross by, see Longmore see also 8 & 9 Vict. c. 20, sect. 46. 813 * 578 CONTRACTS FOR SERVICES. [BOOK II. does not restrain or affect the liability of the company upon con- tracts entered into by it in its character of a common carrier. The omission by a plaintiff', consequently, to give such notice does not preclude him from recovering damages against the com- pany for its negligence or misconduct, or for a breach of those duties and obligations which result from the nature of its em- ployment as a common carrier, {g) But where the parties were trying, in an action ex contractu, the right of the company to make certain charges under the particular provisions of their act of parliament, the action was considered to be brought for something done under the act, and notice of action was held to be necessary, (/t) Of the Parties to be made Plaintiffs in Actions against Carriers for the Loss of or Injury to Goods.^ — The action against a carrier for the loss of goods intrusted to him for conveyance should, in the absence of an express contract for the carriage of them, be brought by the owner of the goods ; for with [ * 578 ] him, as * the party damnified, is the implied contract for their safe conveyance deemed to be made. When goods are delivered to a carrier, in execution of a contract of sale, for the purpose of transmission to an intended purchaser, and no express contract founded upon a pecuniary consideration moving from the consignor has been entered into between the carrier and the consignor for the carriage of them, the law raises an implied promise for their safe conveyance in favor of the party in whom the right of property in the goods is at the time vested. If, therefore, the right of property and the risk of loss have, by a previous contract of purchase and sale, or a contract to send the goods in satisfaction and discharge of a debt due from the consignor to the consignee, passed to the consignee, the latter is the only party entitled to sue the carrier for an injury to the goods, whether such carrier be a carrier by land or a carrier by water, and whether he be named by the purchaser or chosen by 1 Article on Con.signees' right of action against carrier, hy J. 0. Pierce, 7 South. L. Eev. N. s. 255. (f/) Palmer v. Grand June. E,y. Co., Q. B. 747. See, however, the cases ante, 4 M. & W. 749; 7 Dowl. P. C. 232; p. *522. Carpue v. Lend. & Bright. Ey. Co., 5 (h) Kent v. Gt. West. Ey. Co., 3 0. B. 714; 16 L. J. C. P. 72. 814 CHAP. II.] CAEEIERS. * 579 the vendor, (i) If, on the other hand, from fraud or noncom- pliance with the requisites of the statute of frauds, no actual sale has taken place so as to transfer the right of property and the risk of loss from the consignor to the consignee, the con- signor is the proper party to maintain the action, (k) So if a tradesman merely sends goods for approval to a particular cus- tomer, or on terms of " sale or return," or sends goods of the value of £10 and upwards, pursuant to an oral order or an oral contract of sale, to a person who has not given " earnest," or made a part payment, or accepted any part of the goods, and the contract is void by reason of non-compliance with the provisions of the statute of frauds, then, as there has been no actual sale so as to transfer the right of property and the risk of loss to the consignee, the consignor is the party to sue the carrier. (J) But when a special contract has been entered into between the carrier and the consignor, whereby the carrier, in consideration of a sum of money paid or agreed to be paid by the consignor as the price of the carriage of goods, agrees with him to convey them to the consignee, it is no answer to an action brought by the consignor against the carrier upon such special contract to say that he is not the owner of the goods. In such a case the action may be brought either by the consignor with whom the express engage- ment was made, or by the consignee as the owner of the goods in whose behalf it was made, (m) * Where the plaintiff, the consignor, having received [*579] goods from Amsterdam to be transmitted to the con- signee in Surinam, shipped them on board the defendant's vessel, upon a bill of lading which stated that the goods were shipped by the plaintiff, that they were to be delivered in Surinam to the consignee or his assigns, and that the freight was paid by the plaintiff in Loudon, it was held by Lord Ellenborough that the defendant, after having signed such a bill of lading, could H] Dawes v. Peck, 8 T. R. 332; 3 H. & K 510; 27 L. J. Ex. 401; Duif Button V. Solomonson, 3 B. & P. 584; v. Budd, 6 Moore, 469; Stephenson «. Dnnlop .«. Lambert, 6 CI. & Fin. 600; Hart, 1 M. & P. ^f; * Bi"g;^476. Brown v. Hodgson, 2 Campb. 36; King (?) Coates v. Chaplain 3 Q. B. 489 V Meredith ib. 639; Fragano v. Long, (m) Davis v. James, 5 Burr. 2680: 4 B &C 219- Coxei;. Harden, 4 East, Bell ... Chaplain, Hard. 321; Moore v. 217- Evans v! SiM, 4 Sc. N. R. 43. Wilson, 1 T. R. 659; Dunlop v. Lam- (k) Coombs V. Brist. & Ex. Ey. Co., hert, 6 CI. & Fin. 600. ^ ' 815 *579 CONTRACTS FOR SERVICES. [BOOK II. not bring the ownership of the goods into question. The con- sideration upon which the contract was founded moved from the plaintiff ; the undertaking was made to him ; and he was there- fore entitled to maintain the action to recover the value of the goods, and would hold the sum recovered as a trustee for the real owner, (n) Where a laundress residing at Hammersmith was in the habit of employing a carrier to convey linen from Hammersmith to the consignee at London, and the carrier was paid by the laundress, it was held that the latter was entitled to maintain an action upon the special contract against the carrier for the loss of the goods by the way, although they belonged to the consignee, (o) In these cases the bailee of, the goods, who has a special property in them, may enforce the express contract entered into with the carrier, unless his principal interferes to prevent him. " The rule is that either the bailor or the bailee may sue ; and whichever first obtains damages, it is a full satis- faction." (p) But a settlement for loss or damage made with a person bringing the goods to the carrier, which person has no property or interest in the goods, will not be an answer to an action by the owner, (g) Every person, as we have seen (ante, p. * 522), who has been injured by the negligent performance of the work of carrying may maintain an action for damages against the carrier, al- though the work was done under a special contract to which he is no party. A servant, for example, may maintain an action against a railway company, or other carrier, for injuries sustained by him from the negligent management of a train by which he was a passenger, or from the negligent execution of the work of carrying, although the contract for his conveyance was made, and the hire or fare paid, by his master, the duty of carrying care- fully being a duty which arises independently of the con- tract, (r) So where a railway company was bound by statute to carry the mails and the officers of the post-office who accom- panied them, it was held that the company must exercise a (?i) Joseph V. Knox, 3 Campb. 320; (q) Coombs v. Bristol & E.x. Ry., 3 Sargent «. Norris, 3 B. & AM. 277. H. & ?^. 1; 27 L. J. Ex. 269. (o) Freeman v. Birch, 1 N. & M. 420. (r) Jlarshall v. York, Newcastle, & (p) Nicolls V. Bastard, 2 C. M. & R. Berwick Ry. Co., 11 C. B. 655; and see 660. the cases, ante, p. * 522. 816 CHAP. II.] CARRIERS. * 580 * reasonable care in performing the duty cast upon [*580] them by the statute, and were bound to carry safely ; so that if any officer of the post-office was injured by the negli- gent management of their trains, he was entitled to maintain an action against them for damages, although the contract for his conveyance had been entered into between the company and the Postmaster-General, (s) Joint Bailments to Common Carriers. — Where a box delivered to a carrier to be carried contained things belonging to each of the plaintiffs " separately, but none in which they had a joint ownership, it was held that nevertheless there was a joint bail- ment in respect of which they might sue jointly, (f) Parties to be made Defendants. — When goods have been de- livered to the driver of a stage-coach to be carried, and have been lost by the way, an action ex contractu for negligence should be brought against the coach-proprietor, and not the mere servant or agent, (m) But as aU who participate in a wrongful act are responsible ex delicto for the injurious consequences of it, the servant may be sued for the breach of duty as well as the master or the employer. The 8th section of the Carriers' Act {ante, pp. * 537, * 538) provides that the act shall not protect the coachman, guard, book-keeper, or other servants' of the com- mon carrier from liability for losses or injuries occasioned by their own personal neglect or misconduct. Every railway company is responsible for the detention or conversion, by its officers and servants, of the property which has come into the hands of such servants and agents in the course of their employment in the business of the company. There must be some one authorized on the part of the company at every station to receive and deliver out goods, and to do things promptly that require immediate attention ; and whoever is permitted by the company to have dominion over their sta- tions, and to exercise authority over their property and over their porters and servants, will be presumed to be clothed with the necessary authority, and his acts, done within the scope of (s) Collett V. Lond. & North- West- 4 C. B. N. rf. 318; 27 L. J. C. P. em Ry. Co., 16 Q. B. 989. 335. (0 Metcalfe v. Lond. & Br. Ry. Co., (u) Williams v. Cranston, 2 Stark. 82. VOL. I. 52 817 *581 CONTRACTS FOE SERVICES. [BOOK II. his ordinary employment, will be binding on the company. Thus, where some young quicks were forwarded by railway to the plaiutilf, and tlie general superintendent of the company, at the request of the plaintiff, in order to keep the quicks alive, permitted them to be put into the company's ground at the railway station, where they remained under the control and charge of the superintendent, and the latter subsequently refused to deliver them up to the plaintiff', it was held that [*581] *the railway company was responsible for the unlawful detentiou of the property by their servant, (x) The common carrier cannot qualify or limit his liability in respect of the negligence, want of skill, or carelessness of his servants and agents, in and about the carrying of the goods, by any private arrangement as to remuneration out of the profits of the business or otherwise, between himself and such servants or agents. " If a common carrier should allow his driver of the carriages some small things as perquisites, the master would, without all doubt, be still liable ; and that is only a private agreement between master and servant, and only a different way of paying his servant's wages." {y) Parties to be made Defendants — Carriage of Goods and Pas- sengers over Distinct Lines of Railway. — We have already seen {ante, p. * 564) that where goods are delivered to and received by a railway company to be carried to a particular destination, the railway company receiving the goods is the party to be sued for the loss of or damage to them, although the loss or damage has been sustained on the line of a second or third railway company, to whom they have been delivered by the first railway company to be carried to their place of destination. The contract is made with the first railway company to whom they have been delivered, and to whom tlie hire for the entire journey has been paid ; (a) but both companies may, under certain circumstances, become joint contractors for the conveyance of the goods. (&) {x) Taff Vale Ey. Co. 1;. Giles, 23 liiis, 7 H. L. C. 231; Coxon u. Gt. West. Law J. Q. B. 43. Ry. Co., 5 H. & N. 274; 29 L. J. Ex. (y) Page, .T., Cas. temp. Hard. 90; 165. and see Hyde v. Trent & Mersey Nav. [h] Hayes v. South Wales Ey. Co., 9 Co., 5 T. E. 397. Ir. Com. Law Rep. C. P. 474. (a) Bvist. & Exeter Ry. Co. v. Col- 818 CHAP. 11.] CAEEIERS. * 582 The same rule prevails with regard to the passenger and his lug- gage, so that if one fare is paid and one ticket given for the entire journey, the contract is with the company issuing the ticket and receiving the money, and not with a second or third I'ailway company over whose line the passenger is travelling in order to reach liis destination, (c) And the company with which the contract is made will be liable for the negligence of such other railway company, the contract being that due care shall be used in carrying the passenger from one end of the journey to the other, so far as is within the compass .of railway manage- ment, (d) But every railway company which allows its railway to remain open for public traffic is responsible to passengers who sustain injury from the line being unsafe and dangerous, * although such persons are conveyed along it in the [ * 582 ] carriages of some other company, (e) Damages in Actions against Carriers. — In all actions against common carriers for unlawfully refusing to receive and carry a passenger or goods, substantial damages are recoverable, as there is an injury to a right ; and if the plaintiff, in consequence of the wrongful refusal (/) of the common carrier to carry him, has been obliged to take a special conveyance and incur extraor- dinary expenses to reach the place to which he ought to have been carried, all such expenses (if reasonable) are recoverable, if claimed by the plaintiff, and specified in his claim as fjart of the damage he has sustained. So if a common innkeeper unlaw- fully refuses to receive and provide accommodation for a trav- eller, substantial damages are recoverable for the injury done to the plaintiff's riglit as a traveller and wayfarer to have shelter and accommodation in the common inn; and if he has been put to expense in seeking shelter and accommodation elsewhere, and has been obliged to hire conveyauces to reach it, he is entitled to recover such special damage, if claimed. But the expenses (c) Mytton v. Mid. Ey. Co., 4 H. & See, however, Taylor v. Great Northern N. 621; 28 L. J. Ex. 385; Great West- Ry. Co., ante, p.* 529; Wright «. Mid- crn Ry. Co. v. Blake, 7 H. & N. 687; land Ky. Co., ante, p. *521. 31 L. J. Ex. 346; Buxton v. North- (e) Birkett t). Whitehaven, &c. Ry. Eastern Ey. Co., L. R. 3 Q. B. 549; 37 Co., 4 H. & N. 738; 28 L. J. Ex. 348. L. J. Q. B. 258. (/) Le Blanche v. London & N. W. (d) Thomas c. Ehymney Ey. Co., Ry. Co., infra. L. E. 6 Q. B. 266; 40 L. J. Q. B. 89. 819 * 583 CONTKACTS FOR SERVIUES. [BOOK II. incurred must be such as he would probably have incurred on his own account, {cj) All persons are responsible for all the natural and legal conse- quences resulting from acts done by them in violation of the rights of others. The jury are entitled to look at all the sur- rounding circumstances, and at the conduct of the parties, to see vt^here the blame is, and to a.ssess the damages according to the way in which the parties have conducted them.selves. (/;-) The amount of damages recoverable from common carriers for loss of or injury to goods, is regulated and coutrolled by the several acts of parliament requiring consignors in certain cases to declare the value of the article at the time it is delivered to the common carrier to be carried {unic, p. *5oo.) No greater dauiages than £50 are to be recovered for loss of or injury to a horse through the neglect or default of a railway company or its officers ; £15 per head for neat cattle ; and £'1 per head for sheep and pigs ; unless the person sending or delivering the animals to the company shall at the time of delivery have declared them to be of higher \'alue. (/) Proof of the value and of the amount of injury lies in all cases upon the person claiming compensation. If the value of horses has been declared at the time of the dehvery of the ani- [*5S3] mals to a * railway company to be carried, and the contract between the parties has lieeu made upon that basis, the plaintiff is bound by his declaration of value, and can- not recover beyond the declared value, {h) Generally speaking, when articles of merchandise such as corn, hops, hemp, &c., are delivered to a carrier to be carried to a market town, and the carrier fails to deliver them in the ordi- nary course, and the goods come to a fallen market, the differ- ence between the marketable \'alue of the goods at the time they would have been sold if they had been carried according to con- tract, and their marketable value at the earliest period at which they could have been brought to market after their delivery to ((/) Le Blanclie v. London & N. "\V. (?) 17 & IS Vict. c. 31, sect. 7. Ry. Co., 1 C. P. r>. 286, C. A. ; Milieu (/,) Jt'Cance r. London & North- V. Bra.sh, 8 Q. B. D. .3".. Western Ry. Co., 7 H. & N. 477; 31 (h) Davi.s^i. North- Western Ry. Co., Law J. Exch. 65; 34 ib. 39. 4 Jur. N. s. 1303. 820 CHAP. II.J CARRIERS. * 584 the consignee, will be the measure of damages recoverable. ([) If the goods have beeu lost altogether, the consignee is not restricted to the value of the goods at the place where they were delivered to the carrier to be carried ; but if their marketable value was greater at the place of destination than at the place of consignment, the consignee is entitled to recover that difference, as being a loss lik'ely to arise in the ordinary course of trade, (m) If there is no market at tlie place of delivery, the damages must be ascertained by taking into consideration, in addition to the cost price and expense of transit, the reasonable profit of the importer. Where goods were delivered to a carrier by sea to be carried from Glasgow to Vancouver's Island, and on the arrival of the ship at the latter place they could not be found, it was held that the true measure of damages was the cost of replacing the lost articles in Vancouver's Island, with interest at 5 per cent on the amount until judgment, by way of compensation for the delay, (w) In an action against a common carrier for loss sustained by long delay in the delivery of articles of merchandise intrusted to him to be carried, whereby the consignee had lost the season for selling them to advantage, and the marketable value of the arti- cles was seriously diminished, it was held that the carrier was answerable for this loss, it being such as might naturally be expected to result from great delay in delivering articles of mer- chandise, (o) So where a railway company contracted with the plaintiff, who showed goods at agricultural shows, to carry the goods to anotlier show-ground on a particular day, the court, although nothing was said by the parties as to the pur- pose for which the goods were to *be carried, inferred [*584] that the defendants must have known it, and that the plaintiff was entitled to damages for loss of profit which was a natural result, and that no evidence was necessary to show that he had a prospect of making profit at the particular show, (p) (J) Rice V. Baxendale, 30 L. J. Ex. Ex. 393; British Columbia Saw Mill Co. 371; O'Hanlan v. Gt. Western Ry. Co., v. Nettlesliip, I.. R. 3 C. P. 499. 6 B. & S. 4S4; 34 L. J. Q. B. 154. (o) Wilson v. Lane. & York. Ry. Co., (m) O'Hanlan v. Gt. Western Ry. 9 C. B. N. s. 632; 30 L. J. C. P. 233. Co., siqjra. ip) Simpson ;;. L. & N. W. Ry. Co., (n) CoUard v. S. E. Ry. Co., 30 L. J. 1 Q. B. D. 274. 821 *" 584 CONTRACTS FOR SERVICES. [BOOK II. But where shoe manufacturers agreed to supply a London firm with shoes for the French army, to be delivered on the 3rd of J"'ebruary, and gave notice that they were under contract to deliver on the 3rd, and that if not, the shoes would be thrown on their hands, but not that there was anything exceptional otherwise in the contract, it was held that the carriers were not liable for the difference between the price the consignors had to sell the shoes at, and the agreed price, as the difference was extraordinary, and it was not such a loss as naturally arose or could be reasonably contemplated, {g) When the consignor has been guilty of no intentional decep- tion to conceal the risk, and his own conduct or omission to declare the nature and value of the article has not in any way conduced to the loss, but the loss has been caused solely by the negligence and want of care of the common carrier, the latter is bound by the common law to make compensation for the loss so occasioned, to the extent, at all events, of the apparent and pre- sumable value of the article at the time it was bailed to him to be carried. But he is not, it seems, responsible for any extra- ordinary or unusual value which may have accidentally been imparted to it, and which could not, from the apparent nature and general character and api^earance of the thing, be fairly pre- sumed to exist. Thus where the plaintiff had put a £50 bank- note into his carpet-bag amongst his linen and wearing apparel, and got on a coach and delivered the carpet-bag to the coachman, and on the arrival of the coach at its place of destination the bag was missed and never afterward seen, the jury gave a verdict for the value of the linen and wearing apparel, but not for the value of the note, and the court afterward refused to increase the verdict by the amount of tlie note, (r) In other cases, how- ever, the plaintiff has recovered the full value of the article lost, (s) But the plaintiff is not entitled to recover damages for loss of iq) Home V. Midland Ey., L. E. 8 (s) Sleat v. Fagg, 5 B. & Aid. 342; C. P. 131; Albingpr v. Armstrong, L. E. Walker v. Jackson, 10 M. & W. 161; 2 9 Q. B. 473; The Parana, L. B. 1 P. D. M. & P. 342; see Angell on Carriers, 118. sect. 262. (r) Miles V. Cattle, 4 M. & P. 630; 6 Bing. 743. 822 CHAP. II.] CARRIERS. * 585 wages of workmen kept unemployed by reason of the non-arrival of the goods, or for loss of profit which might have been made if the goods had been delivered in due course, if the carrier had no notice of the purpose for which the goods were wanted ;(i) *and if the carrier held the goods at the [*585] time of the loss in the character of a warehouseman, he cannot in general be made responsible for more than the actual value of the goods, (u) Where a warehouseman warehoused part of the goods at a place other than that agreed upon, and they were destroyed without negligence, it was held that the damages were not too remote, (x) And so where an innkeeper contracted to stable horses, and then let the stables to another, who turned out the plaintiff's horses, which caught cold and were damaged, such damage was held not too remote, (y) Where the plaintiff complained that the defendant had hired him to carry a load of timber to Ipswich, and that he carried the timber there and asked the defendant where it was to be de- posited, but the defendant would give no directions, and made the plaintiff's horses, which were heated, stay so long in the wagon that they took cold, and some of them died, and the rest were spoiled, it was held that the immediate and proximate cause of the injury to the horses was the plaintiff's own neglect in not having them taken out of the wagon and put into a stable, and that the original wrongful act of the defendant, in not finding a place of deposit for the timber, was not sufficiently connected with the loss of the horses to render the defendant responsible for such loss, (z) If the plaintiff, being the consignor of horses or other articles, makes a declaration of value which is below their real value, in order to get them carried at a lower rate of charge, he will be (t) Le Peinteur v. S. E. Ey. Co., 36 (x) Lilley o. Doubleday, 7 Q. B. D. Law T. R. 170; Hadley v. Baxendale, 510. 23 L. J. Ex. 179; Watson v. Amberg. (y) McMahon v. Field, 7 Q. B. D. &c., Ry. Co., 15 Jur. 448; ,ind see 591; disapprovmg Hobbst). L. & S. W. Hornet). Midland Ry. Co., L.R. 8 C. P. Ry. Co., L. R. 10 Q. B. Ill, where 131; 42 L. J. C. P. 59. plaintiff's wife catching cold waa held (u) Henderson v. N. E. Ry. Co., 9 too remote. W R 519. . («) Virtue v. Bird, 2 Lev. 196. 823 * 586 CONTEAGTS FOR SEEVICES. [BOOK n. bound by his declaration of value, and cannot recover more than he has himself declared, (a) Damages in respect of Delay in Delivery. — If by reason of goods not having been delivered in due time, the season for finding customers for them has passed away, and they are conse- quently of less value to the jalaintiff, the deterioriation in value may be considered in estimating the amount of damage, but not the profit which -would ha\'e been made upon the sale of them if they had been delivered at the proper time ; (6) or where the goods consist of machinery, the presumed profit which [*o86] would have been made *by the use of them during the time it took to replace them, (c) The right measure is the market value of the goods at the place and time at which they ought to have been dehvered, or if there is no market, then the price at the place of manufacture, with the cost of carriage and a reasonable sum for importer's profit, (d) Thus, where the plaintiff bought caustic soda of the defendant, to be shipped at a certain time, which the defendant neglected to do, and there was no market for caustic soda, it was held that the plaintiff was entitled to recover the increased freight and insur- ance which had become necessary by reason of the defendant's delay, and also the loss of his profit upon a re-sale of the soda to A, but not tlie amount of damages which he (the plaintiff) had paid A on a sub-sale made by him to a consumer of the article, (r) Hotel expenses incurred by the consignee while waiting for the delivery of the goods by the carrier are not recoverable. (/) Damages in Cases of Personal Injuries. — A new trial will be granted in an action for personal injuries arising from a railway accident, where the damages found by the jury are so small as to show that they must have omitted to take into considera,tion (a) McC'ance v. Lonil. & North-West. (c) British Columbia Saw Mill Co. Ey. Co., 34 L. J. E.x. 39. v. Nettleship, siipn(. (b) Wilson V. Lane. & York. Ey. Co., {d) O'Hanlan v. Gt. West. Ry. Co., C. B. N. .s. 642 ; Simmons v. South- 34 Law J. Q. B. 154. Eastern Ry. Co., 7 Jur. N. s. 849; Gt. {<>) Borries v. Hutchinson, 34 L. J. Western Ry. Co. v. Eedmayne, L. R. 1 C. P. 169. C. P. 329. (/) Woodger v. Gt.A¥estern Ry. Co., L. R. 2 C. P. 318. 824 CHAP. 11.] CARRIERS. * 587 some of the elements of damage, {g) as well as where they are unreasonably large. The jury are to consider "what the plain- tiff's income would probably have been, how long that income would probably have lasted, and all other contingencies to which a practice is liable." Qi) The measure of damages is the loss of time, expense incurred, pain and suffering, and permanent injury causing pecuniary loss, {i) As to damages under Lord Campbell's act, see Addison on Torts (5th edition, by L. W. Cave, Q.C.), p. 550. Claims against a Common Carrier for refusing to carry should show that the defendant is a common carrier of goods plying for liire between the place where the goods were tendered to liim for conveyance and the place to whicli they were addressed ; that the plaintiff tendered to the defendant certain goods to be carried from the one place to the other; that the defendant had room and the means of receiving and carrying them, and the plaintiffs were ready and willing to pay him his customary hire ; yet the defendant would not receive and carry the goods, where- by the plaintiffs were put to great loss and inconvenience, set- ting forth any special damage that may have been sustained, and concluding with a claim for damages, (m) * Plea of Not GuUty. — Before the Judicature Acts, the [ * 587 ] plea of not guilty in actions for negligence operated as a denial only of the wrongful act alleged to have been committed by the. defendant, and no defence other than such denial was ad- missible under that plea. Thus in actions against a carrier for loss of or damage to goods, the plea of not guilty operated as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were received, or of the plaintiff's property in the goods, {n) Special Defences. — Where the defendant denies the receipt of the goods to be conveyed by him as a common carrier, or denies his receipt of them altogether, he must by special defence {g) Phillips V. L. & S. W. Ey., 5 Q. {m) Pickford v. Grand Junction Ey. B. D. 78. Co., 8 M. & W. 372. (h) Per Jessel, L. J. ib. («.) Eeg. Gen. Hil. Term, 16 Vict.; (i) Blake v. Mid. Ey., 18 Q. B. 93; 1 Ell. & Bl. App. Ixxxi., Ixxxii. Armsworth v. S. E. Ry., 11 Jur. 758. 825 * 588 CONTRACTS FOR SERVICES. [BOOK II. allege that he did not receive the goods to be carried as in the claim mentioned. If the plaintiff has claimed against him upon his liability as a common carrier, insuring the safe conveyance of the things he carries, and it appears tliat the things were delivered to him under a special contract, the cause of action ■will be disproved under this defence, (o) If he denies the plain- tiff's title or right to the possession of the property, he must allege that the property was not at the time he received it to be carried, the property of the plaintiff ; {p ) or, admitting that the plaintiff was the owner of the property at the time it was deliv- ered to him, he may show that the plaintiff's right to the pos- session of it ceased or had been determined, and that some third party had since the bailment become entitled to the property and had demanded it of the defendant, {q) If the defendant relies upon the Common Carriers' Act, he must by his defence show that the articles delivered to him for conveyance were of the description mentioned in the statute, and that at tlie time of the delivery of them to him to be car- ried, the value and nature of the goods were not declared by the plaintiff. (?-) Evidence at the Trial — Proof of the Bailment. — To charge the common carrier for the loss of goods, however occasioned, it must, of course, be shown that the goods were either actually or constructively bailed to him or his servants to be carried. They must either have been delivered into his hands or into the hands of his servant or agent, or some person authorized by him to receive them. If they were merely deposited in the [ *588 ] yard of an inn, or upon a * wharf to which the carrier resorts, or were placed in his cart, vessel, or carriage, without his knowledge and acceptance, or that of his servants or agents, there has, of course, been no bailment or delivery of the goods to him,(s) and he cannot, consequently, be made respon- (o) White D. Gt. Western Ey. Co., 2 (r) Pianciani v. London & Soutli- C. B. N. s. 7. Western Ry. Co., 18 C. B. 229; Hart {p) Cheesman v. Exall, 6 Exch. 341. v. Baxendale, 6 Exch. 789; 21 L. J. (q) Sheridan v. New Quay Co., i C. Exch. 123. B. N. s. 618 ; Europ. & Austral. R. M. (,s) Selway v. Holloway, 1 Ld. Ra}Tn. Co. V. R. M. St. P. Co., 30 Law J. C. P. 46 ; Buckman v. Levi, 3 Campb. 414; 247. Lovett v. Hobhs, 2 Show. 128. 826 CHAP. II.] CARRIERS. * 588 sible for the loss of them. If the common carrier's servant has been induced by the consignor to depart from the usual course of dealing, and to receive goods which he was not bound to receive and carry, under circumstances of hazard known to the consignor, but not disclosed to the carrier's servant, or on terms different from those on which alone he was authorized to receive them, the carrier will either not be responsible for the loss of the goods, as never having been delivered to him, or at all events not on his common law liability of an insurer, (t) If the con- signor has made a private bargain with the driver of the cart or coach of the common carrier for the conveyance of a parcel for a gratuity ^\'hich was not intended by the parties to find its way into the pocket of the carrier, there has been then no bailment to the latter, and he is not, consequently, liable in case the parcel is lost. The bailment in such a case is a bailment to the driver alone, and he alone is responsible for the loss, (u) If the plaintiff has merely hired the cart or carriage of the common carrier, and has sent his own servants with the goods to take charge of them, and there has been no actual delivery or bailment of the goods to the carrier, the latter is not responsible for their safety, (x) If a passenger travelling on the outside of a stage-coach has kept a parcel or package in his own hands and under his own care, or taken it with him into the interior ot the vehicle without the knowledge of the carrier or his servants, and the thing is lost, the carrier is not responsible for the loss, as the article was never delivered to him or to his servants, or in any way intrusted to his or their keeping. But if the thing has been tendered to the carrier for conveyance, and the latter has directed the passenger to place it in or upon any portion oi the vehicle, there has been a constructive bailment or delivery and acceptance of tlie goods, so as to charge the carrier for the loss of them. If luggage is placed with the knowledge of the carrier or his servants under the seat on whicli the passenger sits, the carrier will be responsible for its safe conveyance and (0 Edwards v. Sherratt, 1 East, 604; Bignold v. "Waterliouse, 1 M. & S. 259; Slim V. Gt. Northern Ry. Co., 23 Law Middleton v. Fowler, 1 Salk. 282. J. C. P. 166. (ic) East Jndia Co. v. Pullen, 2 Str. {u) Butler v. Basing, 2 C. & P. 613; 690. 827 ■*589 CONTRACTS FOE SEEVICES. [BOOK 11. delivery to the passenger at the place of destination, (y) [*589] A delivery of goods to a person sent or appointed * by the carrier to receive them is, of course, a delivery to the carrier himself (z) Proof of a Special Contract. — We have seen that every special contract, notice, or condition respecting the acceptance and car- riage of goods by railway and canal companies, must be signed by the party sought to be affected thereby (ante, p. * 5oi>). And the signature must be fairly obtained ; for where a person who was unable to read was told by a clerk of the company that the paper was a mere matter of form and of no consequence, and he signed the paper, relying upon this assurance, it was held that the paper so foisted upon him was not binding, (a) If the plaintiff has declared against the defendants as com- mon carriers, alleging that they received the goods to be carried by them as common carriers, and it turns out that they were received under a special contract (ante, p. * 555), the evidence will fail to support the declaration, unless it be shown that the special contract was unreasonable and void, (b) Proof of Felony by a Carrier's Servants. — When, in conse- quence of the plaintiff's not having paid the extra price for lost articles of value, he is not entitled to recover unless he shows that the things have been stolen by the carrier's servants, it is not enough for him to make out a probiible case against some one or more of the carrier's servants. He must show that the things were lost under circumstances wholly inconsistent with their having been stolen by a stranger, (c) Proof of Jus Tertii by a Common Carrier. — A carrier who has received goods from a consignor is not estopped from denying the title of the latter to the goods. Common carriers are bound to receive goods properly tendered to them for carriage, and can (y) Richards v. London, Brighton, 2 C. B. N. s. 17 ; Latham v. Eutlev, 2 &c. lly. Co., 7 C. B. 848; 18 Law J. C. B. & C. 20. P. 2.51 ; and other ea.ses, ai,/r, p. *r,46. (,•) Metcalfe v. London & Britchton, (a) Synisi;, Chaplin, 5 Ad. & E. 631; &c. Ry. Co., 27 Law J. 0. P. 333. 1 N. & P. 129. See also M'Qiieen v. G. W. Ry. Co., (a) Simons v. Gt. Western Ry. Co., mitc, p. *551; Vaugliton r. L. & N. 2 C. B. N. s. 620. W, Ry. Co., ante, p. *552. (6) White V. Gt. Western Ry. Co., 828 CHAP. II.] CARRIERS. * 590 make no inquiries into the ownership of them. " The law pro- tects them against the real owner if they have delivered the goods in pursuance of their employment without notice of his claim. It ought equally to protect them against the pseudo owner, from whom they could not refuse to receive the goods in the event of the real owner claiming the goods, and their being given up to him. The compulsory character of the employment of a common carrier furnishes ample ground for so holding." (d) Contracts for the Transmission of Messages by Electric Tele- graph — Limitation of Liability.^ — Acts of parliament under which * electric telegraph companies were incor- [*590] porated, generally provided that the telegraph should be open for the sending and receiving messages by all persons alike, without favor or preference, subject to any reasonable regulations made by the company. It was lield to be a reasonable regulation for the company to stipulate that they would not be responsible for mistakes made in the transmission of messages, unless the messages were repeated and an additional payment made for such repetition of tlie message, (e) If a telegraph company negligently made a mistake in the transmission of a message, it was liable to the sender only, and not to the receiver, although the latter may have acted on the message so erroneously transmitted, and may have sustained damage by so doing. (/) The government, through the Postmaster-General, became tlie purchasers of the telegraph companies, under the 31 & 32 Vict. c. 110 ; 32 & 33 Vict. c. 73; ^ For the law govprning telpgi'apli companies anrl telegrapliic communication generally, see Abb. Dig. Corp. tit. Telegraph Cntripniucx ,- Allen, Tclegi'aph Cases; Scott. & J. Telegraphs; Redf. Carr. sects. 541-574; XJ. S. Dig. tit. Telegraph Companies: see further, Strauss v. Western Union Tel. Co., 8 Biss. 104; Behm v. "Western Union Tel. Co., ih. 131; Rogers v. Western Union Tel. Co., 78 Ind. 169; Relle V. Western Union Tel. Co., 55 Tex. 308. Whether telegraphic companies are common caiTiers, and what communicatirtn by telegraph may constitute a contract, see aiite, p. *56, American note; Brink- man V. Hunter, 73 Mo. 172. (rl) Sheridan v. New Quay Co., 4 (/) Playford v. The United Kingdom C. B. N. s. 618; 28 Law J. C. P. 58; Electric Telegi-aph Company, Limited, Cheesman v. Exall, 6 Exch. 341, over- L. E. 4 Q. B.' 706; 38 L. J. Q. B. 249; ruling Laclouch v. Towle, 3 Esp. 114. Dickson v. Renter's Tel. Co., 2 C. P. D. («y McAndrew v. Elect. Tel. Co., 17 62; 3 C. P. D. 1, C. A. 829 * 590 CONTRACTS FOR SERVICES. [BOOK II. 33 & 34 Vict. c. 88. By the first of these acts (sect. 6) and by the last (sect. 8), agreements, &c., made with the companies may be enforced against the Postmaster-General. Post-office officials cannot, however, be held liable for negligence, for they are the servants of the government or the public, (g) (g) See Horace Smith on Negligence, p. *134, note {p). 830 END OF VOL. L KF 801 A73 1888 Author Addison, Charles G Vol. Title Addison on contracts Copy Date Borrower's Name